Do You Really Need a Will? Understanding Intestacy in Ontario

One of the most frequent questions clients ask is whether they truly need a Will. The answer is almost always yes—regardless of how modest or straightforward your circumstances appear. Dying without a Will triggers a cascade of legal and tax consequences that can frustrate your intentions and burden the people you leave behind.

What Happens When There Is No Will?

In Ontario, when someone dies without a Will—legally referred to as dying intestate—Part II of the Succession Law Reform Act (SLRA) dictates how their estate is distributed. The legislation imposes a rigid formula that may not reflect your relationships or wishes.

Here is a summary of the key distribution schemes under the SLRA:

• Married spouse, no children: Your spouse receives the entire estate.

• Married spouse and one child: Your spouse receives the first $350,000 (the preferential share), plus one-half of the remainder. Your child receives the other half.

• Married spouse and two or more children: Your spouse receives the preferential share of $350,000, plus one-third of the balance. The remaining two-thirds are divided equally among your children.

• Children, no spouse: The estate is divided equally among your children. If a child predeceased you leaving their own children, those grandchildren inherit their parent's share.

• No spouse or children: The estate passes to your parents in equal shares. If neither parent survives, the SLRA provides further cascading rules for siblings, nieces, nephews, and beyond.

Taking Control Through a Will

A properly drafted Will allows you to override these default rules and make choices tailored to your life:

Protecting a Common-Law Partner

Common-law spouses receive nothing under Ontario's intestacy rules. Without a Will, a partner of decades may be left with no legal claim to your estate. A Will ensures they are provided for.

Planning for Minor Children

If a minor child inherits more than $35,000 from an intestate estate, those funds must be paid into court and managed by the Accountant of the Superior Court of Justice until the child turns 18. With a Will, you can direct funds into a trust with a trustee of your choosing—someone who knows your child and can make distributions for education, health, and welfare.

Making Specific Gifts

Whether it is a piece of jewelry, a family heirloom, or a cherished artwork, a Will lets you direct specific possessions to specific people.

Building a Contingency Plan

What if your primary beneficiaries do not survive you? A Will allows you to name alternate beneficiaries rather than letting the intestacy formula determine who inherits.

Leaving a Charitable Legacy

Charities are not entitled to inherit under intestacy. A Will gives you the ability to direct a portion of your estate to causes that matter to you.

Creating Testamentary Trusts

A Will provides the flexibility to establish customized trust structures. Common examples include:

• A spousal trust where your spouse receives income for life, with the capital passing to your children upon your spouse's death.
• A Henson trust designed to provide for a beneficiary with disabilities without jeopardizing their ODSP benefits.

Probate and Estate Administration Tax

When someone dies intestate, a court application is required to appoint an estate trustee, meaning the full value of the estate is generally subject to estate administration tax (EAT)—approximately 1.5% of the estate's value above $50,000.

A Will names your estate trustee directly, and in certain situations, that person can administer the estate without a formal probate application—saving the estate thousands in taxes. Even when probate is necessary for certain assets, strategies such as multiple Wills can limit the portion of the estate that must be probated, further reducing EAT exposure.

The Bottom Line

No matter the size of your estate, a carefully drafted Will offers control, clarity, and cost savings that Ontario's intestacy laws cannot provide. If you have not yet made a Will—or if yours needs a review—contact an estate planning lawyer to discuss your circumstances.