If you are wondering about Ontario’s inheritance laws, it is because someone you know passed away without a will or you are worried about your own situation. However, before you conclude that someone passed away intestate, make sure they really had no will. A thorough search is necessary, and here are some ideas:
- in the deceased person’s home
- in their safety deposit box at the bank
- in a safe at home
- at the office of the deceased’s lawyer
- through a private will registry
- in a court record
- ask their closest friends/family
If you are not sure how to complete some of the searches above, an estates lawyer can help you.
The next step is to identify who the executor is. This is a person who was either appointed in the will or someone who needs to step forward if there is no will. The usual preference for priority to be appointed as estate trustee without a will is as follows: spouse, children, grandchildren and other lineal descendants, parents, siblings, grandparents, other next-of-kin.
Often, but not always, probate is required to proceed with the estate administration. Probate is a procedure to ask the court to officially give someone the authority to act as the executor (if there is no will) or to confirm the authority of a person named as the executor in the deceased’s will.
The executor’s job is to:
- pay the deceased’s debts
- wind up all their affairs
- liquidate the estate assets
- distribute the remainder of the estate to the beneficiaries
To distribute an estate with a will, the executor will have to follow the instructions the testator left in the will. However, if there is no will, the Ontario Succession Law Reform Act (the “Act”) sets out how the assets are distributed. There is a specific table of consanguinity which determines entitlement to assets, and generally the people who inherit are the married spouse and the next of kin. Unfortunately, a common law spouse cannot inherit under the Act.
For any beneficiaries under the age of 18, the Office of the Children’s Lawyer might get involved and there is a special procedure that needs to be followed when one applies for probate for an estate with a minor beneficiary.
The Estate Administration Tax (or probate tax) must be paid at the time one files for probate. This tax is calculated on the total value of the estate as of the date of death. However, if one does not apply for probate or a probate certificate is not issued, no Estate Administration Tax is due.
But what happens when someone passes away and nobody is available to administer the estate?
The Office of the Public Guardian and Trustee (“OPGT”) may apply to be a trustee of last resort if the deceased was an Ontario resident or owned real estate in Ontario, and the deceased did not make a will or the deceased did make a will but the executor has since died or become incapable and there are no known next-of-kin living in Ontario or the next-of-kin are minors or mentally incapable adults and the estate meets the OPGT’s financial criteria after payment of the funeral and all debts owing by the estate.
If you have any questions about this topic, I would be happy to have a chat!
PLEASE NOTE THAT THE CONTENT OF THIS BLOG IS MERELY FOR INFORMATION PURPOSES AND DOES NOT CONSTITUTE LEGAL ADVICE.
