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Intestacy Law in Ontario: Distribution of Estate

In my previous blog post, I discussed who may apply to administer an intestate estate. In this blog post, I will discuss who the beneficiaries are when someone who dies without a will (i.e., intestate).

In the case of an intestate estate, Part II of the Succession Law Reform Act (“SLRA”) sets out the following priority interests:

1.  Spouse and Preferential Share

In the event the deceased leaves a spouse and no issue, the spouse is entitled to the entire estate. Under the SLRA, it is important to note that the definition of a “spouse” does not include common law spouses. This creates a somewhat paradoxical situation in that a common law spouse can apply to administer the estate of his/her deceased spouse but is not included as a beneficiary at law under the applicable legislation.

Should a spouse die intestate and leave issue, the surviving spouse is entitled to the “preferential share.” Currently, under the SLRA the “preferential share” is two hundred thousand dollars ($200,000.00). This means that if the estate of the deceased spouse is worth two hundred thousand dollars or less, the surviving spouse inherits the entire estate.

It is important to note that the above calculation does not include jointly owned assets or assets that pass to a beneficiary outside of the estate. For specific advice as to what is included, legal advice should be sought.

2.  Spouse and Surviving Issue

If the net value of the estate is greater than the preferential share, the division depends upon the number of children left by a deceased, if any. In the event there is a spouse and one child, the surviving spouse receives the preferential share and one half of the estate. If there is a spouse and more than one child, the spouse receives the preferential share and 1/3rd of the residue (the children divide the 2/3rd balance).

3.  No Spouse and No Issue

If there is no spouse and no issue and one or more parents alive, the parents will receive the estate (or one parent if the other is also deceased).

4.  No Spouse, No Issue, No Parents

In these circumstances, the estate passes equally among the deceased’s siblings. In the event a sibling has predeceased, the share for any such sibling passes to his or her children, if any.

5.  No Spouse, No Issue, No Parents, No Siblings

Following the above, if there is no spouse, children or grandchildren, no parents, no siblings, the estate passes to the deceased’s nieces and nephews equally.

6.  No Spouse, No Issue, No Parents, No Siblings, No Nieces and Nephews

In this scenario, the estate passes to the deceased’s surviving next of kin of equal degree pursuant to the table of consanguinity.

7.  Where there is no Next of Kin

In the unlikely event the deceased died without leaving any surviving next of kin, the share for the deceased escheats to the Crown.

Thanks for reading,

Jason