Dying without a will — known legally as dying "intestate" — means the provincial government decides what happens to your estate, not you. Intestacy laws vary by province, but the result is often not what you would have chosen. Understanding what happens can be the motivation many Canadians need to finally get their will done.
When someone dies without a will, there is no executor to step forward. Instead, a family member or other interested party must apply to the court to be appointed an administrator of the estate. The court uses provincial legislation to decide who has priority for this role (typically a spouse, then adult children). The administrator has similar responsibilities to an executor, but the court process to appoint them adds time and cost.
Each province has its own intestacy rules, but the general framework is similar across Canada. Distribution depends on who survives you:
In most provinces, your entire estate goes to your surviving spouse. "Spouse" in most provinces includes legally married spouses and, increasingly, common-law partners who have lived together for a minimum period (typically two or three years, or who have a child together).
This is where intestacy can create problems. In many provinces, your estate is split between your spouse and children according to a formula. In Ontario, for example, the spouse receives a "preferential share" (currently $350,000) and then shares the remainder with children. This can force a partial sale of the family home to pay children their share.
The estate is divided equally among your children. If a child has predeceased you and had children of their own (your grandchildren), those grandchildren may inherit their parent's share.
The estate passes to your parents, then to your siblings, then to more distant relatives in an order set by provincial law. If no living relatives can be found, your estate eventually escheats to the provincial government.
If you have minor children and no will, no one is legally designated as their guardian. The court must appoint a guardian, which takes time and legal cost. The court will consider what is in the best interests of the children, but this may not align with your preferences. Naming a guardian in a will does not guarantee the court will approve that person, but it carries significant weight.
Minor children who inherit under intestacy cannot manage assets themselves. A trustee must be appointed — again, by the court — to hold assets until each child reaches the age of majority. At that point, the full inheritance is typically handed over regardless of the child's maturity or financial readiness. Many parents would prefer to hold assets in trust until a later age like 25 or 30.
Intestacy rules cannot:
Not all assets pass through your estate. Assets with named beneficiaries, or jointly held assets with right of survivorship, pass directly to the recipient regardless of whether you have a will. These include:
Only assets that form part of your estate — those you own solely in your own name with no beneficiary designation — are subject to intestacy rules.
Beyond the legal distribution of assets, dying without a will imposes a significant administrative burden on your loved ones at an already difficult time. They must:
The solution is straightforward: create a will. Even if your estate is modest, a will ensures your wishes are followed, names the people you trust to carry them out, and spares your family unnecessary legal costs and family conflict. Pair your will with updated beneficiary designations on your RRSPs, TFSAs, and life insurance to ensure all of your assets are covered.
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