If you die without a Will in Ontario, your estate does not automatically go to the government. Even where you have no surviving spouse or children, other relatives may be entitled to inherit. The difficulty is working out which relatives qualify, particularly where the family has lost touch. A cousin who has not spoken to the deceased in thirty years might inherit. A sister-in-law who helped the deceased every week might receive nothing Ontario's intestacy rules. Being close to someone and being their closest relative are different things in estate law.

Ontario’s Succession Law Reform Act (the “SLRA”) sets the order of inheritance. These are the intestacy rules: the rules that apply to estate property not disposed of by a valid Will.

Who Is First In Line?

A surviving spouse and descendants have priority. “Descendants” includes children, grandchildren and later generations. The absence of living children does not mean the estate is available to siblings or cousins; a grandchild may be entitled through a child who died earlier.

Where there is no surviving spouse or descendant, Section 47 of the SLRA works through the following groups:

1.   Parents. Both surviving parents share equally. If only one survives, that parent receives the estate.

2.   Brothers and Sisters. If neither parent survives, siblings inherit, with provision for the children of a deceased sibling.

3.   Nieces and Nephews. If no sibling survives, the surviving nieces and nephews share equally.

4.   Other Next-of-kin. If none of the above survives, the estate passes to the nearest qualifying relatives, determined by their degree of relationship.

These rules apply to the estate after debts, taxes and expenses. Assets passing by survivorship or beneficiary designation may fall outside it.

Do Nieces and Nephews Inherit Their Parent’s Share?

Where at least one sibling survives, the children of a deceased sibling can take their parent’s share. If no sibling survives, the calculation changes. Suppose a person dies leaving no spouse, descendants or parents. A sister survives, but a brother died earlier, leaving two sons. Under Section 47(4) of the SLRA, the sister receives one-half of the estate. The nephews divide their father’s half, receiving one-quarter each.

Now suppose the sister also died before the deceased, leaving one daughter. With no surviving sibling, Section 47(5) applies. The niece and two nephews each receive one-third. There is no separate half-share reserved for each sibling’s family.

Can a Cousin Inherit Before an Aunt or Grandparent?

Once there is no surviving spouse, descendant, parent, sibling, niece or nephew, Section 47(6) directs the estate to the next of kin in the nearest degree of relationship. Section 47(8) explains how to count: go up the family tree to the nearest common ancestor, then down to the relative.

A grandmother is two steps away: from the deceased to their parent, then to their grandmother. An aunt is three steps away: up to the parent, up to the grandparent, then down to the aunt. A first cousin is four steps away, adding the step from the aunt or uncle to their child.

A grandmother takes priority over an aunt, and an aunt over a first cousin. Different generations can rank equally: an aunt and a great-grandparent are each three steps away.

What Happens if One of Those Relatives Died Earlier?

Section 47(6) requires distribution “without representation.” A deceased relative’s children do not simply take that relative’s place. Suppose the closest qualifying relatives are three surviving aunts. A fourth aunt died earlier, leaving two children. The three surviving aunts divide the estate equally. The fourth aunt’s children do not receive the one-quarter share their mother would have received had she survived.

The same restriction applies under Section 47(5) where surviving nieces and nephews inherit. A deceased niece’s children do not take her place alongside the surviving nieces and nephews. More distant relatives may eventually qualify under Section 47(6), but they must qualify in their own right. They do not inherit merely because their parent would have.

What About Half-Siblings and Relatives by Marriage?

Half-siblings inherit on the same basis as full siblings under Section 47(4). Section 47(8) also expressly treats relatives of the half-blood equally with relatives of the whole-blood in the same degree. Nor is inheritance simply a question of genetics. Adoption and the legal parentage rules in Section 4 of the Children’s Law Reform Act determine the family relationships that flow from a legally recognized parent-child relationship.

Being related by marriage does not, by itself, give someone an intestate share. A sister-in-law does not inherit her late husband’s place in his sibling’s estate. A common-law partner also has no automatic intestate share as a spouse in Ontario, although dependant support or other claims may be available.

Before the Estate is Distributed

The estate trustee needs reliable family information before paying anyone. Birth, marriage, adoption and death records may be needed to establish the beneficiaries. Where relatives have scattered or contact has been lost, a genealogist may be required. If there truly is no qualifying surviving spouse or relative, Section 47(7) provides that the estate passes to the Crown. Not knowing where the relatives are is not enough to reach that conclusion. Estates involving a deceased person domiciled elsewhere or land outside Ontario may also require consideration of another jurisdiction’s law.

If you would rather leave your estate to a friend, an in-law or a charity than a distant cousin, make a Will that says so. Without one, the estate trustee cannot make that choice for you and the law very rigidly gives priority to blood relations based on degree of closeness.

If you are dealing with a death without a Will, gather the available family information before arranging to distribute anything. MKC Law Office in Peterborough assists with estate administration and Will preparation. To discuss an estate or arrange to make your Will, call 705-748-2241 or contact our office.

Ian Keay