Probate without a will in Ontario is possible. When a person dies without a valid will, an eligible person may apply to the Ontario Superior Court of Justice to become the estate trustee. Ontario's intestacy rules determine who inherits the estate after its debts and expenses are addressed.
For families, this creates two separate questions: who can manage the estate, and who is entitled to receive it? Being the closest family member does not automatically give someone access to bank accounts or authority to sell the home.
At Zubic Law, we help families work through those questions with clear, practical guidance. This article explains the appointment process, inheritance rules, costs and responsibilities that can arise when someone dies without a will.
Dying intestate means dying without a valid will disposing of the property in question. A will normally names an estate trustee and sets out who should receive the estate. Without those instructions, the legal process relies on Ontario's statutory rules.
The Succession Law Reform Act governs intestate succession. It does not necessarily produce the outcome the deceased person would have chosen. Informal promises about a house or savings generally do not replace a valid will, although other legal arrangements or claims may need review.
If you find handwritten instructions, an unsigned document or a copy of a missing will, have a lawyer review it before assuming there is an intestacy. Whether a document can operate as a will is a legal question.
Not every estate needs probate. The assets, ownership arrangements and requirements of financial institutions usually determine whether a certificate is necessary.
Probate is the court process used to establish or confirm a person's legal authority to administer an estate. When there is no will, it provides a way to obtain an appointed estate trustee. The appointment is different from the later work of collecting assets, paying liabilities and distributing the estate.
A bank may require a Certificate of Appointment of Estate Trustee before releasing funds in the deceased person's sole name. Different financial institutions set their own requirements for releasing particular accounts without probate.
Ask each institution what it needs. There is no universal bank-account amount below which every estate can avoid the court process. Do not use the deceased person's login or withdraw funds simply because you expect to inherit.
Probate is commonly needed when the estate includes real property that does not pass by right of survivorship. If the property must be sold, Ontario recommends obtaining the appropriate certificate before entering into an Agreement of Purchase and Sale.
A lawyer should review title and the proposed transaction early. Family members can begin gathering records without committing the estate to a sale before authority is settled.
There is no named executor when there is no will. Instead, someone applies for appointment as estate trustee without a will. Ontario's guidance says a spouse or common-law partner usually has the first right to apply, followed by a close adult relative.
Potential applicants include children, parents, grandchildren, siblings, nieces or nephews. The court ultimately determines the appropriate appointment. Priority, residency and the circumstances of the estate can affect the application.
The application may require consents or renunciations from people with a relevant entitlement. A family member who organizes the funeral or holds the paperwork does not automatically become estate trustee.
If relatives disagree about who should act, get advice before filing competing applications. An appointed estate trustee has responsibilities to the estate and its beneficiaries, not permission to favour one branch of the family.
Our probate and estate administration services can help determine who should apply and what supporting documents are needed.
Yes. A common-law partner may be entitled to seek appointment even though they have no automatic inheritance under Ontario's intestacy rules. The right to administer and the right to receive estate property must be considered separately.
This distinction matters when an unmarried partner has handled the household finances for years. Familiarity with those finances may be helpful, but it does not establish ownership of the estate.
Check the deceased person's records, contact their lawyer and make reasonable enquiries about a will. You should also determine whether another person has already started a court application or received a certificate.
Keep a record of the enquiries. Discovering a will later can change who should act and how the estate is distributed.
Prepare an inventory of the deceased's assets and liabilities. Include bank accounts, investments, real estate, personal property and business interests where relevant. Record ownership details and values at death, rather than relying only on today's balances.
Identify the relatives who may be entitled to inherit, including descendants of a family member who died earlier. Marriage, separation, adoption and previous relationships can affect the family tree and the legal analysis.
The regular application generally uses Form 74A, with the required evidence, service documentation and draft certificate. Proof of death, beneficiary information, consents and renunciations may be needed. The court forms vary with the circumstances.
The Ontario probate application guide explains the filing process. Application materials must be given to the people entitled to notice before filing. Additional service may be required on the Office of the Children's Lawyer or the Public Guardian and Trustee where minors or incapable adults are involved.
Use the current forms and ensure affidavits are properly sworn or affirmed. Court staff can explain administrative procedures, but they cannot provide legal advice about entitlement or how to answer a legal question in the application.
An administration bond may be required for an appointment without a will. It provides security for those interested in the estate. Whether it is required, and whether the court may dispense with or reduce it, depends on the law and the application.
Ask about this before filing. Obtaining a bond or preparing a request for relief can affect both the paperwork and the cost of the probate process.
The application is generally filed with the Superior Court of Justice in the county or district where the deceased lived. If they lived outside Ontario, the location of Ontario property can determine the appropriate court office.
The applicant pays the applicable Estate Administration Tax deposit and files the required materials. If the court requires corrections or a judge's decision, further steps follow. Court approval results in a Certificate of Appointment of Estate Trustee or, where applicable, a Small Estate Certificate.
An estate within this limit may qualify for the optional small-estate probate procedure, even without a will. A Small Estate Certificate authorizes the trustee to manage the assets specifically listed in it.
The simplified route still requires accurate valuations, notice and proper administration. It has its own procedures, including a general requirement to give beneficiaries the signed application at least 30 days before filing. It does not change who inherits under the Succession Law Reform Act.
If additional assets take the total above $150,000, the regular appointment process may be needed. Choosing the correct route at the outset helps avoid redoing the application.
The following outlines common situations for an intestate estate after debts and administration expenses. Family-law rights, dependant-support claims, separation and other legal issues may affect the result. Assets passing outside the estate require a separate review.
A qualifying legally married spouse generally receives the entire net intestate estate if there are no descendants. This rule does not apply automatically to a common-law spouse, and the rules concerning separated spouses must be checked.
For deaths on or after March 1, 2021, the spouse's preferential share is $350,000. If the net intestate estate does not exceed that amount, the qualifying spouse generally receives it all.
Above $350,000, the remaining estate is divided according to how many children or family branches qualify. With one child, the spouse receives half the remainder and the child receives half. With two or more children, the spouse receives one-third of the remainder and the descendants share two-thirds under the statutory rules.
For example, assume a $650,000 net intestate estate, a qualifying spouse and two surviving children, with no competing claims. The spouse receives $350,000 plus $100,000 from the remaining $300,000, for a total of $450,000. Each child receives $100,000.
The preferential-share regulation sets a different amount for deaths before March 1, 2021. The date of death matters, even if administration starts much later.
Where there is no spouse entitled to inherit, descendants generally receive the net estate. A deceased child's descendants may take that child's share under the representation rules.
Do not assume only the surviving children count. Confirm the family relationships before calculating shares or distributing money.
If there is no qualifying spouse or descendant, the estate generally passes equally to the surviving parents, or entirely to the sole surviving parent. If neither parent survives, siblings and, in specified circumstances, children of deceased siblings may inherit.
Further rules address nieces and nephews and then more distant next-of-kin. Their shares depend on the statutory order; the family does not simply vote on a fair division.
No. Ontario's intestacy rules distinguish legally married spouses from common-law partners. Living together for many years does not itself give a common-law partner an automatic share of the deceased person's estate.
That does not mean the partner has no rights. Jointly owned property, valid beneficiary designations, dependant-support claims or equitable claims may be relevant. Those rights require their own analysis and may involve deadlines.
A common-law partner should get advice before agreeing to a distribution or assuming they must leave the home. For future planning, our wills and estate planning services can help document intentions that intestacy law would otherwise overlook.
A legally married spouse may be excluded from intestate inheritance if the statutory separation conditions are met. These include certain separation agreements, court orders, arbitration awards or a qualifying period of living apart because of marriage breakdown.
The spouses must also have been living separate and apart because of the breakdown at death. Transitional rules connected to January 1, 2022 can affect whether the exclusion applies. A different address alone does not answer the question.
Legally married spouses may also have rights under the Family Law Act, including an election affecting inheritance. Review the dates, documents and available choices with a lawyer promptly.
Certain assets may pass directly to another person. Examples include property held with a valid right of survivorship and some registered accounts or life insurance policies with valid beneficiary designations.
Joint ownership must be reviewed carefully, particularly when an adult child was added to bank accounts for convenience. The names on the account do not always settle beneficial ownership. Check the documents and the reason for the arrangement.
If the deceased owned the house alone, or held an interest that falls into the estate, the appointed estate trustee must deal with it as part of estate administration. A child does not automatically receive the home because they lived there or paid for repairs.
Before a sale or transfer, our real estate lawyers can review title, the court certificate and the closing requirements. Estate administration and the registration of a property transfer are related but separate steps.
The tax commonly described as a probate fee is called Estate Administration Tax. Under current rules, no Estate Administration Tax is payable on the first $50,000 of estate value. Above that, the tax is $15 for each $1,000, or part of $1,000, over $50,000.
For example, an estate valued at $250,000 for this purpose generally pays $3,000. The estate's value for this tax is not necessarily its net value for inheritance: most debts cannot be deducted, although qualifying encumbrances on included real estate generally can.
Ontario's Estate Administration Tax guidance explains the calculation. Legal fees, valuations, bond costs and accounting expenses are separate from this probate fee. Ask for an explanation of the work and costs expected for the particular estate.
The appointed estate trustee needs to collect and protect assets, address outstanding debts, pay taxes and keep records. Estate money should be kept separate from personal money, with a clear account of every receipt and payment.
An Estate Information Return is generally due within 180 calendar days of receiving the certificate, even when no Estate Administration Tax is payable. Final tax returns for the deceased and any required estate returns are separate obligations.
Before distributing the remaining assets, the trustee must consider claims, tax liabilities and appropriate reserves or clearance. Receiving a certificate does not mean every beneficiary can be paid immediately.
Keep beneficiaries informed about progress and expenses. Clear explanations can reduce family conflict, especially when a property sale is complete but administration remains unfinished.
No. A power of attorney ends when the person dies. Someone who previously managed finances under that document does not automatically become the estate trustee.
Our guide to powers of attorney in Ontario explains their role during life. A will and a power of attorney address different needs within proper estate planning.
There is no single timeline for every intestate estate. Finding relatives, confirming the estate's value, obtaining a bond and correcting court documents can affect the appointment. Disputes and complex estates may take longer.
The full administration also includes work after probate, such as selling property and resolving tax matters. Ask your lawyer to distinguish the expected court-processing stage from the time needed to complete the estate.
No. The law first looks for qualifying family members in the statutory order. The Crown becomes entitled only if there is no qualifying spouse or next-of-kin.
For most families, the concern is that the legal distribution may differ from the deceased person's wishes. Proper estate planning allows those wishes to be documented while there is still an opportunity to do so.
Bring any will-related documents, proof of death, asset statements and family information to your first meeting. Flag a common-law relationship, separation, minor beneficiary or family dispute early so the application reflects the circumstances.
Zubic Law supports families and estate trustees in Niagara Falls and across Ontario. Contact our team to discuss who should apply, whether probate is needed and how to move the administration forward.
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