Information for people who are inheriting, or think they are entitled to inherit, the property of someone who died.
How an estate is distributed
How an estate is distributed depends on whether or not the person who died left a valid will. An estate is someone's property, possessions and other personal items. A will is a legal document that says who will inherit the estate after someone dies.
How an estate is distributed: With a will
When a person dies with a will, the estate is normally distributed according to the directions in the will, once the funeral and burial expenses and any debts have been paid.
In some cases, the will can be challenged and the law takes precedence over the wishes of the person who died. In the following instances, you should check with a lawyer:
- If the person who died has a surviving spouse or dependent (someone who they supported financially), their money and property may first go to those people before it goes to anyone named in the will.
- If the person who died has money and property that is jointly owned with another person or has a designated beneficiary (e.g. an insurance policy or joint bank account), it may pass directly to the survivor on the death of the joint owner if it was truly intended as a gift to the survivor. In addition, a dependent can make a claim for that money or property if they need it to support themselves.
- If the person who died got married after they wrote the will, the will may become completely invalid.
- If the person who died got divorced after they wrote the will, parts of the will may become invalid (e.g. the parts leaving property to the former spouse may become invalid and the former spouse can no longer be the estate trustee, even if they were named in the will).
- If one of the beneficiaries in the will is no longer alive, the rules are different depending on the relationship between the person who died and the beneficiary.
How an estate is distributed: Without a will
When a person dies without a valid will, called "intestate", Ontario's Succession Law Reform Act sets out how the estate is distributed.
According to the Act, unless someone who is financially dependent on the deceased person makes a claim, the first $200,000 is given to the deceased person's spouse if he or she has decided to claim his/her entitlement. The other possibility is to claim half of the net family property. A lawyer can help determine which is the better choice.
Anything over $200,000 is shared between the spouse and the descendants (e.g. children, grandchildren) according to specific rules.
If there is no spouse, the deceased person's children will inherit the estate. If any of them have died, that child's descendants (e.g. the deceased person's grandchildren) will inherit their share.
If there is no spouse or children or grandchildren, the deceased person's parents inherit the estate equally.
If there are no surviving parents, the deceased person's brothers and sisters inherit the estate. If any of the brothers and sisters have died, their children (the deceased person's nieces and nephews) inherit their share.
If there are no surviving brothers and sisters, the deceased person's nieces and nephews inherit the estate equally. However if a niece or nephew has died, their share does not pass to their children.
When only more distant relatives survive (e.g. cousins, great nieces or nephews, great aunts and uncles), the rules are complex and you should speak to a lawyer.
If any heir was alive when his or her relative died, but died before the estate was distributed, that person's own heirs are entitled to their share.
When a person dies without a will, only blood relatives, including children born outside of marriage, or legally adopted children can inherit. Half-blood relatives share equally with whole-blood relatives.
Proving you are an heir to an estate
If the person died with a will and you are named as an heir in the will, you may have to prove to the estate trustee that you are the person named. You can do this by showing the trustee valid identification (like a driver's licence or a birth certificate) and/or providing a sworn statement, called an affidavit. The estate trustee is named in the will and is responsible for carrying out the wishes of the person who died. An estate trustee used to be called an administrator or an executor.
If one of your relatives died without a will in Ontario, a relative was probably appointed to be the estate trustee. You may have to prove your relationship to the deceased person by showing the estate trustee documents like birth, marriage and death certificates, and providing one or more sworn statements. You won't know how much of the estate you'll get until the trustee identifies everyone who is entitled to inherit.
Finding a will or certificate of estate trustee
If a person has died and you think you might be named in their will, but don't have a copy, or if you don't know who the estate trustee is, you can check with the civil office of any Superior Court of Justice to see if someone has filed an application for a certificate of appointment of estate trustee anywhere in Ontario. If an application has been filed and it includes a will, you can contact the estates department of the civil office of the Superior Court of Justice in the county or district where the deceased person lived right before death and ask for a copy of the will. Court staff will tell you the fee for this.
You can either write to the courthouse or go there in person. You will need to give court staff the deceased person's full name, address and date of death. You should also provide a phone number where they can call you to let you know the fee. You can either pay in person and pick the file up at the courthouse, or mail the fee payment and ask for a copy of the will to be mailed back to you.
If your relative died without a will, you may still be entitled to inherit all or part of the estate. The court can often give you the name of the person who was appointed to administer the estate. The court will have a copy of the Certificate of Appointment of Estate Trustee Without a Will, a document that names the person authorized to manage and distribute the estate of the person who died, called the estate trustee.
Even if your relative lived in Ontario when he or she died, there may not be a will or certificate of appointment of estate trustee on file with the Superior Court of Justice. In many cases, jointly held assets pass automatically to the surviving owner and the rest of the assets are of low value so the estate can be settled without a certificate of appointment of estate trustee. There is no central registry of wills in Ontario and it is not mandatory to file wills with the court or government.
Applying for death benefits
Death benefits may be available to the spouse or children of someone who dies. Death benefits are administered by the federal government. For more information, consult the Canada Pension Plan Death Benefits page on the Service Canada website, or call them at 1-800-277-9914.