Intestate Succession: What Happens if You Die Without a Will

Most people assume that if they die without a Will, (referred to as intestate succession) their spouse or children will “automatically” take over and everything will be straightforward. That assumption is wrong. In Ontario, dying without a Will — known legally as dying “intestate” — almost always creates more delay, more cost, and more conflict than dying with even a simple Will.

Here’s why.

1. The Government Decides Who Gets What

When you die without a Will, you do not get to choose who inherits your estate. Instead, the Succession Law Reform Act imposes a rigid formula.

Very briefly:

• If you have a spouse and no children → your spouse gets everything
• If you have a spouse and one child → your spouse gets the first $350,000 plus 50% of the rest
• If you have a spouse and two or more children → your spouse gets $350,000 plus ⅓ of the balance
• If you have no spouse → children inherit equally
• If no children → parents, siblings, nieces/nephews, and so on

This formula does not consider:

• Second marriages
• Estranged children
• Common-law partners (who get nothing automatically under Ontario intestacy law)
• Disabled beneficiaries
• Family dynamics
• Who actually contributed to the wealth

A Will lets you decide. Intestacy lets the government decide.

2. No One Has Legal Authority to Act

One of the biggest practical problems with intestacy is that no one automatically has authority to deal with anything. Your bank accounts, real estate, investments, and even your home are frozen until someone is formally appointed by the court as Estate Trustee Without a Will.

This requires:

• A court application
• Formal notices to all next-of-kin
• Affidavits and paperwork
• Weeks or months of delay

In many families, this turns into a fight over who gets control. Scarier still, the estate trustee is meant to be the person who determines what happens with the deceased person’s remains. Funerals can be put on hold while this is ongoing.

With a Will, your chosen executor can act immediately. Without a Will, everything stops.

3. A Bond Is Usually Required — And Someone Has to Pay It

When there is no Will, Ontario courts almost always require the estate trustee to post a bond — often equal to twice the value of the estate. That means if the estate is worth $1 million, the bond could be $2 million.

Bonding companies require the premium to be paid in advance.

But here is the problem: when someone has just died, their bank accounts are frozen. So the person applying to be estate trustee often has to front tens of thousands of dollars personally just to get appointed.

The only alternative is to ask the court to dispense with the bond — but:

• It is not automatic
• It is not guaranteed
• The court must be satisfied it is in the best interests of both beneficiaries and creditors

This creates delay, risk, and uncertainty at exactly the worst time. A properly drafted Will normally avoids this entire problem.

4. Common-Law Spouses Are Left Out

One of the most shocking realities in Ontario law is this: a common-law spouse does not inherit anything if there is no Will.

While a surviving common-law partner may have the right to bring a claim for financial support, that right only exists through litigation. This means retaining a lawyer, starting a court application, paying legal fees, waiting months (or longer) for a resolution, and taking on the very real risk that the claim may not succeed.

Many people assume their partner is automatically protected. In Ontario, without a Will, that assumption is often dangerously wrong.

5. Minor Children Trigger Court and Government Involvement

If a person dies with minor children and no Will, things become even more complicated. Their inheritance does not simply go to a surviving parent.

Instead:

• Funds are paid into court or held under strict supervision
• Guardianship issues arise
• The Office of the Children’s Lawyer becomes involved
• Court oversight is required for many decisions
• Children receive their inheritance outright at 18, with no protections

There is no ability to create a trust, stagger payments, or appoint trusted people to manage funds. A Will lets you do all of that. Intestacy does not.

The Bottom Line

Dying without a Will does not make things easier for the people you leave behind — it makes everything harder. It leads to delays at a time when families need closure, higher legal and court costs that unnecessarily drain the estate, rigid rules that ignore real family dynamics, and a much greater likelihood of conflict and litigation. Even in simple estates, intestacy turns what should be a private family matter into a public court process.

A properly drafted Will, even a basic one, gives your loved ones clarity, authority, and protection when they need it most. Without one, you leave them to navigate a system that is slow, expensive, and unforgiving.

How We Can Help

At Friedman Estate Litigation, we see first-hand how much stress, delay, and unnecessary expense intestacy creates for families. We also know how easily it can be avoided. A properly drafted Will ensures that the people you care about are protected, that your assets go where you intend, and that your estate can be administered efficiently and privately.

Our team would be pleased to assist you with preparing a Will that reflects your wishes and gives your loved ones the clarity and security they deserve. If you have questions about estate planning or would like to get started, we are always happy to speak with you.