Intestacy: Dying Without a Will in Canada

57% of Canadians don’t have a will. If you’re a part of that number and find yourself wondering if you need a legal will or what might happen if you die without one, this article is for you.

What does dying intestate mean?

Dying intestate is a term that means someone has died without a will. Dying without a will means that the government gets to use provincial laws, referred to as intestate succession laws, to decide how to distribute your estate and appoint your executor.

Your estate includes all of your assets (anything you possess of financial or other value) and any debts. What happens with your estate varies from province to province, and it may be very different from what you would have wanted since the government doesn’t take into account the specific needs of individual families.

Having a legal will ensures your estate is handled according to your wishes. But remember that whatever parts of your estate aren't covered by your will are covered by intestate rules. For example, if you don't specify a beneficiary or beneficiaries for your residual estate (which is all the remaining assets in your estate after your specific gifts have been distributed), it will be distributed based on succession laws, just like an intestate estate.

Making a will doesn’t have to be hard or expensive. Get your legal will in less than 20 minutes. Start for free today →

What happens if I die without a will?

The first consequence of dying intestate may be a shock for your surviving loved ones — family and friends are often surprised to learn you didn’t have a will. They may also be shocked to learn how much time, money and work will be required before your estate can be distributed.

Common intestacy issues in Canada

With a will, you can choose someone an executor to manage your estate, you can choose which assets will go to which beneficiaries, and you can choose who will be the guardian of your children and pets. You can also minimize estate taxes and fees (because you decrease the chance of probate) and officially document your funeral and burial wishes.

Without these documented wishes in a legal will, there will be delays in wrapping everything up because probate will be required. If a person dies abroad, it becomes even more complex if they don’t have a will in place, and can add even more stress to their loved ones.

Looking for someone's will? Here's how to search for a will in Canada →

If there is no will, who is the executor?

Someone will have to apply to the court to be appointed as the administrator (or personal representative) of the deceased person's estate. In Ontario the person is called the Estate Trustee. The administrator has the same duties as an executor, the only difference is that the administrator can’t begin to act on your behalf until the court gives permission, which can take a while due to the nature of the legal system. And if nobody steps up, then the court will have to appoint a public trustee. Having a legal will allows for someone to begin acting on your behalf immediately after you die.

Who will take care of my children?

If your minor, dependent children don’t have another surviving parent, the court will decide on a guardian for your young children. This person gains all of the rights and responsibilities of a parent and it may not be the person you believe will do the best job. That's why it's so important for parents to make wills and estate plans.

What is a child entitled to when a parent dies without a will?

Your kids’ inheritance will be held in a trust until they reach the age of majority (18 or 19 years of age depending on the province). Depending on whether you have a surviving spouse or not, your child may either receive half of your estate, a smaller portion of it, or all of it. This depends on your provincial intestate laws.

In Ontario, if there's no will with a trust for minors, the inheritance for the minor is typically paid into court and the child receives it when they turn 18. This can make it difficult financially for a surviving spouse to raise a family.

This age is also often too young for children to know how to properly handle such a large sum of money. By creating a will, you can stipulate the age your children will receive an inheritance, so they can be smarter about it.

What happens to your bank account when someone dies without a will?

When a person dies without a will, the provincial government gets to decide who gets the money in your bank account. Provincial governments will often prioritize immediate family members or blood relatives of the deceased person, which can leave common-law partners with nothing.

Learn more about what happens to your bank accounts when you die →

What is inheritance law in Canada?

Inheritance is the list of assets that are distributed after someone dies, and it generally goes one of two ways. In the unfortunate and highly stressful situation where someone dies without a will, they are deemed to have died intestate, and their estate is dealt with based on provincial rules.

Many provinces handle inheritance law in similar ways, however, it’s important to understand the nuances of your particular jurisdiction.

Learn more about inheritance law in Canada →

What happens if you live with someone and they pass away?

If you are married and living together with your spouse, you are likely to inherit their estate should they pass away without a will. The likelihood that you inherit their entire estate depends on your family structure, such as if you had children together and where you live in Canada.

If you are living with your common law partner and they pass away without a will, you may not inherit anything.

If you are living with someone, like a roommate, whom you have no conjugal or familial relationship with, and they pass away without a will, you will likely not inherit anything of their estate either. Their estate would be distributed according to their will or, if they had no will, the succession laws of your region.

Who inherits when there is no will?

Without a will, you can’t choose who you’d like to benefit from your estate. This means you can’t leave money to a charity you care about, you can’t leave any gifts to close friends and you can’t set aside money to cover the cost of care for your furry family members. Your estate will be distributed using provincial laws that have very little flexibility.

While individual cases may be handled differently, the following breaks down the typical default procedure for administering and distributing your estate if you die intestate by each province (after your debts are paid):

Dying without a will in Ontario

Ontario uses the Succession Law Reform Act to distribute your estate if you die without a will. This is typically the order of distribution:

• If you have a surviving spouse but no children, the spouse will get your entire estate. 
• If you have a spouse and child or children, the spouse will get the first $200,000 of the estate of people who died before March 1, 2021, or $350,000 of the estate for people who died on or after March 1, 2021. This is referred to as the preferential share. The remainder will be divided between the spouse and child or children as follows:
• If you have a spouse and one child, the spouse will get one-half of the residue.
• If you have a spouse and more than one child, the spouse will get one-third of the residue as well as the preferential share ($200,000 or $350,000, as referenced above).
• If you don’t have a spouse but have children, your estate will be divided equally between your children. If any of your children have died, their children (your grandchildren) will get their share.
• If you don’t have a spouse, children or grandchildren, your estate will be divided equally between your parents. If only one is alive, they will get your entire estate.
• If you don’t have surviving parents, your siblings will get your estate. If they’re not surviving either, their children (your nieces and nephews) will get their share.

Learn more about legal wills in Ontario →

Dying without a will in Manitoba

Manitoba uses the Intestate Succession Act to distribute your estate if you die without a will. This is typically the order of distribution:

• If you have a spouse but no children, your spouse gets 100% of your estate.
• If you have a spouse and child/children who also belong to your spouse, 100% of your estate goes to your spouse.
• If you have a spouse and child/children and they do not belong to your spouse, your spouse receives $50,000 or half of your estate (whichever is larger) and one half of the remainder of the estate. The rest is divided between your children.
• If you don’t have a spouse or children, your estate is split equally between your parents. If only one is alive, they get your entire estate..
• If you don’t have surviving parents, your siblings will get your estate. If they’re not surviving either, their children (your nieces and nephews) get their share.

Dying without a will in Alberta

Alberta uses the Wills and Succession Act to distribute your estate if you die without a will. This is typically the order of distribution:

• If you have a surviving spouse but no children, your spouse gets 100% of your estate.
• If you have a spouse and child/children and those children also belong to your spouse, 100% of your estate goes to your spouse.
• If you have a spouse and child/children and they do not belong to your spouse, your spouse receives half of your estate and the rest is divided among your children.
• If you don’t have a spouse but have children, your estate is divided equally among your children.
• If you don’t have a spouse or children, your estate is divided equally between your parents. If only one is alive, they get your entire estate.
• If you don’t have surviving parents, your siblings will get your estate. If they’re not surviving either, their children (your nieces and nephews) get their share.

Learn more about legal wills in Alberta →

Dying without a will in Saskatchewan

Saskatchewan uses The Intestate Succession Act, The Wills Act and The Family Property Act to distribute your estate if you die without a will. This is typically the order of distribution:

• If you have a surviving spouse but no children, your spouse gets 100% of your estate.
• If you have a spouse and all your children are also children of your spouse, your spouse gets 100% of your estate.
• If you have a spouse and one child from a different relationship, the first $200,000 of your estate goes to your spouse and the remainder will be divided equally between your child and spouse.
• If you have a spouse and two or more children of a different relationship, the first $200,000 goes to your spouse and of the remaining assets, 1/3 will go to your spouse and 2/3 will be divided equally among your children.
• If you have children and no spouse, your estate will be equally divided among your children.
• If you don’t have a spouse or children, your estate is divided equally between your parents. If only one is alive, they get your entire estate.
• If you don’t have surviving parents, your siblings will get your estate. If they’re not surviving either, their children (your nieces and nephews) get their share.

Dying without a will in British Columbia

British Columbia uses the Wills, Estates and Succession Act to distribute your estate if you die without a will. This is typically the order of distribution:

• If you have a surviving spouse but no children, your spouse gets 100% of your estate.
• If you have a spouse and a child who also belongs to that spouse, your spouse gets the first $300,000. The remainder is divided equally between the spouse and children.
• If you have a spouse and children and those children do not belong to your spouse, your spouse gets the first $150,000. The remainder is divided equally between the spouse and children.
• If you have no children or spouse, your estate is divided equally between your parents. If only one is alive, they get your entire estate.
• If you don’t have surviving parents, your siblings will get your estate. If they’re not surviving either, their children (your nieces and nephews) get their share.

Learn more about legal wills in British Columbia →‍

Dying without a will in Quebec

Quebec uses the Civil Code of Québec to distribute your estate if you die without a will. This is typically the order of distribution:

• If you have a surviving spouse but no children, your spouse gets 100% of your estate.
• If you have a spouse and children, your spouse gets 1/3 of your estate and the remaining 2/3 is divided equally between your children.
• If you only have children, your entire estate is divided evenly among them.
• If you have a spouse but no children and your parents are surviving, your spouse gets 2/3 of your estate and the other 1/3 is divided between your parents. If one of your parents is deceased, the other gets their share.
• If you have a spouse, no children and no parents, but have siblings, your spouse gets 2/3 of your estate and the other ⅓ is divided among your siblings.

Dying without a will in New Brunswick

New Brunswick uses the Devolution of Estates Act to distribute your estate if you die without a will. This is typically the order of distribution:

• If you have a surviving spouse but no children, your spouse gets 100% of your estate.
• If you have a spouse and one child, all marital property goes to your spouse and the remainder is divided equally between your spouse and child.
• If you have a spouse and children, your spouse gets all marital property and ⅓ of the remainder of your estate. The other ⅔ is divided equally between your children.
• If you only have children, your estate will be divided equally between your children.
• If you have no children or spouse, your estate is divided equally between your parents. If only one is alive, they get your entire estate.
• If you have don’t have surviving parents, your estate will be divided equally among your siblings. If any of your siblings are dead, their children (your nieces and nephews) will get their parent’s share.

Dying without a will in Newfoundland and Labrador

Newfoundland and Labrador use the Intestate Succession Act to distribute the estates of those who pass away without a will. Based on this legislation, inheritance typically works as follows:

• If you have a spouse but no children, your spouse gets 100% of your estate.
• If you have a spouse and one child, the spouse and child equally share the estate.
• If you have a spouse and children, your spouse gets 1/3 of the estate, and the rest is split equally between your children.
• If you have a spouse and grandchildren from a child that has passed away, the spouse would receive the same money as if the child were alive and the grandchildren would receive the child’s share of the estate.
• If you have children and no spouse, your estate will be divided equally between them.
• If you have no spouse or children, your estate is divided equally between your parents. If only one parent is alive, that parent would receive 100% of your estate.
• If you have no spouse, children, or surviving parents, your estate will be divided equally among your siblings. If any of your siblings have already passed away, your nieces and nephews will get their parent’s share. If none of your siblings are alive, then your nieces and nephews will get equal shares of the estate.
• If you have none of the above, the administrator or Public Trustee appointed to the estate will search for any next of kin to distribute the estate to equally.

Learn more about dying intestate in Newfoundland and Labrador →

Dying without a will in Nova Scotia

Nova Scotia uses the Intestate Succession Act to distribute your estate if you die without a will. This is typically the order of distribution:

• If you have a surviving spouse but no children, your spouse gets 100% of your estate.
• If you die leaving a spouse and children but your estate doesn’t exceed $50,000, your entire estate goes to your spouse.
• If you have a spouse and one child and your estate exceeds $50,000, your spouse gets the first $50,000 or the home. The remainder is divided equally between your spouse and child.
• If you have a spouse and children and your estate exceeds $50,000, your spouse gets the first $50,000 (or can elect to receive the home) and 1/3 of the estate. The remainder is divided equally between your children.
• If you have no spouse or children, your parents will split your estate. If one is dead, the entire estate will go to the other.
• If you have no spouse, children or parents, your estate will be divided equally among your siblings. If any of your siblings are dead, their children (your nieces and nephews) will get their parent’s share.

Dying without a will in Prince Edward Island

Prince Edward Island uses the Probate Act to distribute your estate if you die without a will. This is typically the order of distribution:

• If you have a spouse but no children, your spouse gets 100% of your estate.
• If you have a spouse and one child, your estate is split evenly between them.
• If you have a spouse and children, your spouse gets ⅓ of your estate and the remainder is split between your children.
• If you have no children or spouse, your estate is divided equally between your parents. If only one is alive, they get your entire estate.
• If you have no surviving parents, your estate will be divided equally among your siblings. If any of your siblings are dead, their children (your nieces and nephews) will get their parent’s share.

Dying without a will in Northwest Territories

Northwest Territories uses the Intestate Succession Act to distribute your estate if you die without a will. This is typically the order of distribution:

• If you have a surviving spouse but no children, your spouse gets 100% of your estate.
• If you have one spouse and one child, your spouse can elect to receive either $50,000 or the matrimonial home and the remainder of the estate is divided equally between the spouse and the child.
• If you have a spouse and children, your spouse can elect to receive either $50,000 or the matrimonial home and ⅓ of your estate, and the remaining ⅔ is divided equally between your children.
• If you have no children or spouse, your estate is divided equally between your parents. If only one is alive, they get your entire estate.
• If you have no spouse, children or parents, your estate will be divided equally among your siblings. If any of your siblings are dead, their children (your nieces and nephews) will get their parent’s share.

Dying without a will in Nunavut

Nunavut uses the Intestate Succession Act to distribute your estate if you die without a will. This is typically the order of distribution:

• If you have a surviving spouse but no children, your spouse gets 100% of your estate.
• If you have a spouse and children, but your estate doesn’t exceed $50,000, your entire estate goes to your spouse.
• If you have a spouse and one child and your estate exceeds $50,000, your spouse can elect to receive the $50,000 or the home. The remainder is divided equally between your spouse and child.
• If you have a spouse and children and your estate exceeds $50,000, your spouse can elect to receive the $50,000 or the home. ⅓ of the remainder goes to your spouse and the other ⅔ is divided equally between your children.
• If you have no children or spouse, your estate is divided equally between your parents. If only one is alive, they get your entire estate.
• If you have no surviving parents, your estate will be divided equally among your siblings. If any of your siblings are dead, their children (your nieces and nephews) will get their parent’s share.

Dying without a will in Yukon

Yukon uses the Estate Administration Act to distribute your estate if you die without a will. This is typically the order of distribution:

• If you have a surviving spouse but no children, your spouse gets 100% of your estate.
• If you have a spouse and children, but your estate does not exceed $75,000, your entire estate goes to your spouse.
• If you have a spouse and one child and your estate exceeds $75,000, your spouse is entitled to that $75,000 and the remainder is divided equally between your spouse and child.
• If you have a spouse and children and your estate exceeds $75,000, your spouse is entitled to that $75,000 and ⅓ of your estate. The remaining ⅔ is divided equally between your children.
• If you have no spouse or children, your parents will split your estate. If one is dead, the entire estate will go to the other.
• If you have no surviving parents, your estate will be divided equally among your siblings. If any of your siblings are dead, their children (your nieces and nephews) will get their parent’s share.

In any province, if none of the above relatives are surviving, the government will continue to search for the next relative in line.

✍️  What makes a will legal or not? Learn the requirements →

Don’t leave your loved ones guessing

Thinking about death isn’t fun, but not planning for it is worse. Most people don’t exactly expect to die without a legal will - they usually assume there will be plenty of opportunities in the future to create this legal document and cross it off their to-do list.

Making a will should be a top priority to ensure your loved ones are cared for and to avoid leaving them with the stress and frustration that comes with the complex process that follows an intestate estate.

Whether you use a will kit, make an online will or have a lawyer prepare your will, having a will in place will ensure your estate is distributed exactly how you want and your family’s future isn’t put in the hands of a judge who knows nothing about them.

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Additional info:

• Here's a guide on what to do if a loved one has just passed away
• Learn more about how to divide an estate between siblings