Most people assume that if they die without a will, their spouse simply inherits everything, or their family sorts it out amicably. In Ontario, neither assumption is safe. When someone dies without a valid will, they are said to have died “intestate,” and the province’s Succession Law Reform Act (SLRA) takes over. A fixed formula, not your wishes or your family’s judgment, decides who receives your property, who raises your children, and who has the legal authority to manage your estate. For many families, that formula produces an outcome no one would have chosen.

This guide walks through exactly what happens under Ontario’s intestacy rules, who is protected, who is left out, and what steps you can take now to avoid leaving these decisions to a statute.

Dying intestate simply means dying without a legally valid will in place. This can happen because a person never made a will, because a will was never properly signed or witnessed, or because a court later finds the will invalid due to fraud, incapacity, or undue influence. Partial intestacy is also possible — this occurs when a will exists but fails to deal with certain assets, in which case those specific assets are distributed as though no will existed at all.

A Married Spouse and No Children

If you die intestate with a legally married spouse but no children, your spouse inherits your entire estate. This is the one scenario where intestacy tends to match most people’s expectations — provided the couple was legally married.

A Married Spouse and Children

This is where most families are surprised. The spouse does not automatically inherit everything. Instead, the spouse first receives what’s called the “preferential share” — currently $350,000 (increased from $200,000 in March 2021, applying to deaths on or after that date) — off the top of the estate. Whatever remains is then divided between the spouse and children: with one child, the spouse and child split the remainder equally; with two or more children, the spouse takes one-third and the children share the remaining two-thirds equally among them. For larger estates this can still work out reasonably, but for modest estates — particularly where most of the value sits in a jointly-owned home already passing outside the estate — a surviving spouse can be left with far less liquid inheritance than families expect, especially if property or business assets need to be sold to satisfy children’s shares.

Children But No Spouse

If there is no married spouse, the estate is divided equally among the children. If a child has predeceased the parent but left children of their own, those grandchildren typically step into their parent’s share.

No Spouse, No Children

The SLRA then works through a strict hierarchy: parents (equally, or entirely to a surviving parent); if no parents, siblings equally, with the children of a deceased sibling taking their parent’s share; if no siblings, nieces and nephews; if none of the above, next of kin of equal degree, determined by a specific counting method set out in the Act. If no next of kin can be located at all, the estate escheats — meaning it passes entirely to the Crown (the Province of Ontario). This outcome is rare, but it does happen when someone dies with no identifiable family.

This is the single most important — and most frequently misunderstood — point in Ontario intestacy law. Unlike a married spouse, a common-law partner has no automatic entitlement to an intestate estate, regardless of how many years the couple lived together or whether they raised children together. The SLRA’s definition of “spouse” for intestate succession purposes requires a legal marriage. A surviving common-law partner may still be able to bring a claim — for example, through a dependant’s support application, a resulting or constructive trust claim, or a claim for unjust enrichment — but these are contested, expensive, and uncertain court proceedings, not automatic entitlements. For blended families, common-law couples, and long-term partners who never formalized their marriage, this gap alone is often reason enough to have a will drafted without delay.

Without a will, there is no named executor. Instead, someone — usually the closest relative, most often a spouse or adult child — must apply to the Ontario Superior Court of Justice for a Certificate of Appointment of Estate Trustee Without a Will. This process takes longer than probating a will that names an executor, and the court may require the applicant to post a bond unless all beneficiaries consent to waive it — something that becomes far harder to secure when family members disagree. Until this certificate is granted, no one has clear legal authority to access bank accounts, sell property, or pay outstanding debts, which can leave a family in financial limbo for months.

If both parents of minor children die without wills, there is no legally named guardian, and the court must decide who raises the children — a decision that can involve the Office of the Children’s Lawyer and, in the worst cases, competing applications from different relatives. Any inheritance a minor child receives under intestacy is also held in trust, typically administered until the child turns 18 — at which point the entire amount is released outright, with no ability for parents to stagger the distribution or attach any conditions, regardless of the child’s maturity at that age.

Beyond the legal formula, dying without a will tends to create predictable practical problems: delays of many months before anyone can access funds or property, added legal and court costs to obtain the Certificate of Appointment, a higher likelihood of family disputes over who should administer the estate, unintended beneficiaries such as estranged relatives inheriting by default, and no ability to name guardians for minor children, appoint a trusted executor, leave specific gifts, provide for a common-law partner, support a stepchild, or benefit a charity. None of these gaps can be fixed after death — they can only be prevented in advance with a properly drafted will.

A validly executed will replaces this entire default framework with your own instructions. It lets you name an executor you trust, provide for a common-law spouse or blended family, appoint guardians for minor children, structure how and when children receive their inheritance, and minimize delays and costs for the people you leave behind. Ontario’s rules for a valid will are technical — including specific requirements around signing and witnessing — and mistakes can render a will invalid, effectively creating the same intestacy outcome you were trying to avoid.

At Lex Magnus Law, our Wills and Estates team works with individuals and families across Toronto to draft wills, powers of attorney, and trust agreements that reflect their actual wishes rather than a court-imposed formula. If you don’t yet have a will — or aren’t confident the one you have is valid and up to date — we can help you put one in place.

Does my spouse get everything if I die without a will in Ontario?

Only if you have no children. If you have both a spouse and children, your spouse receives a preferential share of $350,000 plus a portion of the remainder, with the rest divided among your children.

Do common-law partners inherit under Ontario intestacy law?

No. Only legally married spouses are entitled to an automatic share under the SLRA. Common-law partners must pursue separate legal claims and are not guaranteed any inheritance.

Who can apply to manage an estate when there’s no will?

Typically the closest next of kin — often a spouse or adult child — applies to the court for a Certificate of Appointment of Estate Trustee Without a Will.

What happens to minor children’s inheritance if there’s no will?

It’s held in trust, usually under the Office of the Children’s Lawyer, and paid out in full once the child turns 18, with no conditions attached.

Can the government take my estate if I die without a will?

Only in rare cases where no legally recognized next of kin can be found at all — the estate then escheats to the Crown.