When a person dies without a will, they are said to have died intestate. In Ontario, Part II of the Succession Law Reform Act sets out how that person’s estate is to be distributed.

Married without children

Betty dies without a will. She is married to Arnold, who survivors her and they do not have any children. In this case, the whole of Betty’s estate would go to Arnold.

There are other options available to spouses, which will be discussed in a future blog.

It is worth noting that common law spouses are not afforded the same entitlements as married spouses if their partner dies intestate. The rights of common law spouses will also be set out in a future blog post.

Married with children

A “child” includes a biological child or a legally adopted child. Step-children who are not legally adopted are not entitled to the benefits of the natural or adopted children of the intestate.

If someone dies, but that person is married with a child or children, the surviving spouse is entitled to a “preferential share” of the estate, before the rest of the estate is distributed.  Currently, the preferential share is set at $200,000. If the estate is worth less than $200,000, after liabilities and expenses, the entire estate goes the surviving spouse. The following scenarios set out what happens if the estate is worth more than $200,000.

Let’s say Betty died intestate, leaving her husband Arnold and their son, Joe and her net estate is worth $1 million.  Arnold would get the first $200,000 and he and Joe would share the balance equally. This means that Arnold would get $600,000 and Joe would get $400,000 from Betty’s estate.

  Betty + Arnold ($200,000 + ½ of the balance)

Joe

( ½ of the balance after the preferential share)

If there are two or more children, the surviving spouse receives the preferential share and one-third of the estate. The balance remaining is divided equally among the children.

Using the same scenario, but imagine that Betty and Arnold had two children, Joe and Mary. In that scenario, Arnold gets the preferential share and the balance of the estate is shared equally by Arnold, Joe and Mary. This means that Arnold would receive $466,666 ($200,000, plus one-third of the estate) and Joe and Mary would each receive $266,666.

    Betty   +     Arnold ($200,000 + ¹⁄ ³ of the balance)

     ⇓                                ⇓

   Joe                             Mary

(½ of the balance)    (½ of the balance)

If Betty and Arnold had a third surviving child, Karen, Arnold would still receive the preferential share plus one-third of the Betty’s estate ($466,666). The remaining balance would be divided equally by the three children and they would each receive $177,777.

   Betty   +     Arnold ($200,000 + ¹⁄ ³ of the balance)

     ⇓                                ⇓                                 ⇓

   Joe                             Mary                           Karen

(½ of the balance)    (½ of the balance)      (½ of the balance)

If Joe predeceased Betty and he did not have children, then his share would be divided between Mary and Karen. Arnold’s share would remain the same.

   Betty   +     Arnold ($200,000 + ¹⁄ ³ of the balance)

     ⇓                                ⇓                                 ⇓

   Joe                             Mary                           Karen

                               (½ of the balance)      (½ of the balance)

If Joe predeceased Betty, but was survived by children, his share would go to his children in equal shares.

Betty   +     Arnold ($200,000 + ¹⁄ ³ of the balance)

     ⇓                                ⇓                                 ⇓

   Joe                             Mary                           Karen

                               (½ of the balance)      (½ of the balance)

      ⇓

Betty’s Grandchild

(¹⁄ ³ of the balance)

If one of Joe’s children predeceased Betty, but Betty’s grandchild had children of his own (Betty’s great-grandchildren), the great-grandchildren would be entitled to their parent’s share of Joe’s share in Betty’s Estate.

Betty   +     Arnold ($200,000 + ¹⁄ ³ of the balance)

     ⇓                                ⇓                                 ⇓

   Joe                             Mary                           Karen

                               (½ of the balance)      (½ of the balance)

      ⇓

Betty’s Grandchild

⇓                                   ⇓

Great Grandchild #1    Great Grandchild #2

(¹⁄ 6 of the balance)      (¹⁄ 6 of the balance)

Intestacy leaving children but no spouse

If the instate dies without a spouse, but leaves children, the estate is divided equally among the surviving children.

   Betty   +     Arnold 

               ⇓                                ⇓                                 ⇓

             Joe                             Mary                           Karen

(¹⁄ ³  of the balance)    (¹⁄ ³ of the balance)      (¹⁄ ³ of the balance)

 

Similar to the previous example, grandchildren and great-children receive their parent’s share in the estate, if that parent died before the intestate.

No spouse & no children

In the event that Betty died intestate without a spouse and with no children, the estate would go to her parents in equal shares. If only one of Betty’s parents is alive, that parent would receive the whole of Betty’s estate.

No spouse, no children & no surviving parents

In the case of a person who dies without a spouse, children or surviving parents, the estate is divided equally among the deceased’s siblings. If one of the siblings predeceases the intestate, that sibling’s share would devolve to her children.

No spouse, no children, no surviving parents & no surviving siblings

In the case of a person who dies without a spouse, children, surviving parents or surviving siblings, the estate is divided equally among the deceased’s nieces and nephews in equal shares. The children of a predeceasing niece or nephew do not inherit that niece or nephew’s share in the estate.

No spouse, no children, no surviving parents, no siblings & no nieces/nephews

If a person dies intestate and does not have a spouse, children, surviving parents, siblings or nieces/nephews, the estate is divided equally among the deceased next of kin of “equal degree of consanguinity to the intestate”. Degrees of consanguinity are determined by counting upward to the nearest common ancestor and then downward to the nearest relative:

Great-Grandparent (3 degrees)

Grandparent (2 degrees)

       Parent (1 degree) 

        Intestate      

Child (1 degree)

Grandchild (2 degrees)

Great-Grandchild (3 degrees)

The other lines of consanguinity are as follows: lines-of-cosanguinity

For example, Betty dies leaving a first cousin and a second cousin. The first cousin would inherit all of the estate. If Betty dies leaving a first cousin and a grandparent, the grandparent would inherit the whole of Betty’s estate.

The children of a predeceasing next of kin do not inherit that person’s share in the estate.

If you are beneficiary of an estate without a will or want more information, please contact us and we would be happy to help!



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