Where a person dies without leaving a will, or the will is determined to be invalid, or ineffective, the person is said to have died “intestate.”
Below is a breakdown in accordance with legislation in Ontario as to what happens to a person’s estate if there is no last will and testament:
Intestate in Ontario
Survived by a Spouse
No children Spouse receives 100%.
One child Spouse receives first $200,000. Greater than $200,000, half the excess goes to spouse, half to child.
More than one child Spouse receives first $200,000 plus one-third of amount over $200,000. Children share remaining two-thirds.
One child Child receives 100%.
More than one child Children share equally.
No children Parents share equally.
No Spouse, No Children
No parents Brothers and sisters share equally. If no brothers or sister are living, then all nieces and nephews share equally. If no distant family can be found, estate goes to the Ontario government.
Under income tax law, a spouse includes a common-law spouse. Spouse under the Ontario Succession Law Reform Act refers only to married spouses. Where a person dies without leaving a will, or the will is determined to be invalid, or ineffective, the person is said to have died “intestate.”
A court for example, the Ontario Court (General Division) will determine whether a person dies intestate, and if so, will appoint an administrator by granting a certificate of appointment of estate trustee without a will. This is conclusive evidence of the intestacy of the deceased and of the right of the administrator or state trustee to deal with the property of the deceased. Generally, the courts look to the spouse, children, grandchildren, parents and brothers and sisters of the deceased to grant such certificate of appointment. However, the grant of the certificate of appointment is in the sole discretion of the Court and the Court may appoint a trust company where the next-of-kin of the deceased are unable or unwilling to accept the appointment.
The administrator or estate trustee, once appointed, is responsible for the collection, management, supervision and realization of the assets of the deceased, payment of the deceased’s debts and ultimately distributing assets to those persons entitled to inherit pursuant to the relevant provincial legislation.