Dying Without a Will in Canada

When someone dies without a will, or a will cannot be located, or is located but is deemed invalid, the person is said to have died intestate. Provincial laws deal with this situation, as each province has a potential interest in the deceased person’s estate.

The assets owned by the deceased at time of death are known as that person’s estate. Any debts the person owed need to be paid out of the estate, and anything remaining (the “residue” of the estate) can be divided among the heirs of the deceased person. Note that taxes are a debt.

So far, this is the same as what happens when someone dies with a valid will. The difference is, when you die with a valid will, distribution is usually done by the person you appointed as your executor, according to the wishes you expressed in your will.

Administration

When a person dies intestate, family members may apply to the courts to act as the estate administrator (sometimes know as the estate trustee). If the court provides a certificate of appointment, the administrator must identify and settle all debts in the estate. If anything remains, the administrator must then determine how to divide the residue and must try to locate and obtain the agreement to the division from legal heirs (the usual order or priority is: spouse, children, parents, brothers and sisters, and more distant family such as nieces and nephews).

If no member of the immediate family of the deceased is willing to act as administrator, or none is able to take on the task, then the court may appoint a trust company to undertake the task.

Problems

If the assets of he deceased person have some value, the risk of conflicts among potential heirs is high. In the absence of a will, the individual acting as the administrator of the estate is likely to be confronted with emotional claims (“I was always her favorite”, or “He promised me I would get …”) and there is a strong possibility that cooperation in the process will not happen.

Solution

Write your will! We all like to think we will live a long time, and many of us have a superstitious fear of preparing a will. Reality, however, dictates that accidents and sudden, fatal illness will take some people much sooner than anyone would have predicted.

Once you start acquiring assets of value — a home, a pension plan, investments, and similar — you should prepare your first will. Review your will once a year after you write it (a good time is when you are doing your annual tax return and thinking about your assets), and update it as needed.

A small effort on your part may save your family a lot of unnecessary pain and conflict.

73 thoughts on “Dying Without a Will in Canada

    1. A power of attorney should be witnessed: ideally by two adults who don't benefit from the provisions and who are in the same room with you when you sign the document and they sign as witnesses. Using a notary is an option. Be aware that some notaries will try to convince you that they should draw up the documents, as this represents a better billing for them.

      1. We recently were advised by a lawyer to do a Power of Attorney for a kit on line for a cousin that was in hospital and not able to tend to his affairs .. he was very sick and did not return home. It was filed out by us and witnessed by two impartial people. The cousin signed as well as able to . The bank would not recognize the document as it was not done by a lawyer. And even done by a lawyer we needed to attach medical evidence from a doctor that he was not able to tend to his banking needs and other affairs. So we could do not use it to gain access to this now deceased monies to pay his bills. We then tried to get a lawyer to go to the hospital to do the documents but the cousin died before that could happen. This all happened in Ontario. There was no spouse or children or niece or nephews of the ill person only 1 parent and she was 87 and could not do all this on her own. So as cousins of the ill person we attempted at the elderly parents request to try to deal with this for her. NO of course he has died and has no will so another complex issue is starting to sort things out.

        1. Sorry to hear your story. Things do get complicated when banks get in the middle!Unless you are personally expecting a bequest from the estate of the deceased, or you feel there will be enough money left after the hospital is paid to make fighting for it worthwhile, you may want to just step back and allow the province of Ontario to act as the executor. If anything is left after the hospital and provincial and tax bills are all paid, it will be distributed per living relations, starting with the mother. Richard Day

  1. My common-law wife emmigrated from the USA in 1994….She has dual citizenship…She died suddenly in Toronto very recently….Is a will from 1988 made in Chicago stating an American executor valid in Canada?

  2. What about having a Power of Attorney with an “Enduring Clause” ? Wouldn't that cover you in the event you become incapacitated straight through to death if applicable ?

  3. Debbie,
    Yes, an Enduring Power of Attorney will cover a person from the time incapacity occurs until the person either recovers from the incapacity, or passes away. It's not just a matter of adding a clause saying it's enduring though. You also have to specify how the Enduring Power of Attorney is triggered. For example, who says you've lost capacity? A doctor? Your spouse? Both together?
    Lynne
    http://www.estatelawcanada.com

  4. How long does a woman have to share a house with a man to be considered a spouse if the man were to die intestate.

  5. Cd someone confirm ehic forms are needed when applying for Administration. We have the Self Counsel book but need some clarifiaction.
    Thank you

  6. I have dated my boyfriend for 2 years and we never lived together. He recently passed away with no will, am I entitled to his estate or any part of it?

  7. A Will means absolutely nothing. In BC if a person dies, and they have property, the estate immediately goes to Probate; even if there is an updated Will with an Executor named and all beneficiaries named. And further more naming the beneficiaries does nothing; my brother died 12 years ago, isn't even mentioned in my mother's new updated Will. She passed away a month ago, we have just learned that his son is entitled to a full equal share of her estate's value. On what planet does this make sense?

  8. I live in Manitoba. My father passed away with no will and there is no estate. The only assest was a registered pension which I was named the beneficiary. I understand that I must final a Final Return (for 2010) on this behalf for this money. The problem comes in that he did not final for 2007, 2008 or 2009. Am I responsible for filing these as well?

  9. My father has no will and is currently unable to act for himself due to Alzheimers. His wife (my stepmother) is applying to be power of attourny for his estate. When he dies, do we (his children) have a right to his estate, or is it her's?

  10. A friend had named me in his will but left a suicide note stating other wise. The mother of his children , who did not live with my friend claims that she is taking possession of everything… nothing is probated, not the will nor the suicide note left… can this suicide note be deemed as a dying declaration..

  11. Are half siblings (siblings that share a father and not a mother) intitles to an estate ahead of nieces and nephews. The man had no children, 3 half brothers, 2 half sisters, 2 brothers who have died, and 7 nephews and nieces. Who is intitled to his estate as there is no will?

  12. If a person passes away, spouse is already deceased and there is no will. There were 3 children, however one had passed away years ago, she had two children. When the surviving person passes away are the children of the daughter who passed away entitled to her portion of the estate?

  13. My neices husband died without a will. They are still married but have been seperated for 10 years. They never friled for a legal seperation. Is she entitled to anything. He has 3 children from 2 other women. She wants to sign his home and personel belongings over to them. How does she go about doing this.

  14. My mom passed without a will 2 years ago. I was contacted by a lawyer, asking me if I wanted to apply for benefits from my moms estate. He told me that he had contacted my sister as well. I don't speak to my sister. Will the estate be automatically split between us? We are her only children, no husband.Also why so long in contacting me.

    1. Rhonda,When a person passes without a will, distribution of the estate normally happens in one of two ways:(1) a family member, such as you or your sister, applies to “administer” the estate and deals with the division and distribution, or (2) if a family member fails to act, the government makes the decisions.Your first question should be, is the lawyer you contacted working for the government? If not, how is she or he involved? There is a risk that this lawyer's fees could absorb a significant part of whatever is left in the estate, if the lawyer is one who looks for estates like this, where nothing has been done. If there is value in the estate, this may be a time for you and your sister to communicate, or neither of you may see much from the estate.Richard DayPublisherSelf-Counsel Press http://www.self-counsel.com

  15. My brother passed away a little over a month ago. He was in a common law relationship. He has three biological children. What I would like to know is this. The common law partner and him had just built a house. they had insurence on it that if one of them died the mortgage would be paid off. I would like to know if the children are entitled to any portion of the house. My brother was making the payments on it and the money came from him, or does the common law wife get it all???

    1. This is a complicated question which should be addressed to a lawyer. Factors include, but might not be limited to: the ages of the children, whether they are dependent on the parents, and whether they lived with their father. Richard DayPublisherSelf-Counsel Presshttp://www.self-counsel.com

  16. I am a Canadian Citizen living in the US. My Aunt in Canada passed away and I plan on filing her taxes as I always have for her. I had power of attorney for her but she had no will. She lived in a nursing home and her only assets are money remaining in her account at the Nursing Home under 10,000. She was never married, had no children and the only survivors would be me and my 3 sibblings (nieces and nephews). I would like to apply for trustee of her estate, but wondering if it is even necessary and if so can I as a non resident apply.

  17. my father just passed away.He used your will kit but signed as both witnesses himself and as well he did not finish a sentence.Is the will valid.He as well is separated for 10 years.He has no money but a car with a lien against it.I was named executor but where do I start

  18. How do i apply to act as the estate administrator in ontario? We cannot find a copy of my mother's will and the lawyer who prepared it says he does not have a copy and is not required to have kept a copy?

  19. My brother is in hospice. Ontario Canada he just turned 65 3 days ago. No will that we can find, no spouse he has 3 sisters and that is it. All sisters are together we everything . We know he has stock ? We dont know about the Canadian pension. He has a work Life insurance. All sisters are in agremant that my older sister gets everything. What we dont know is were to start with looking for his assets. What is Canada law regarding debt. Can anyone heip us?

    1. The Ontario Probate Kit will help you understand how to find creditors and how to apply to \”administer\” the estate when there is no will. Richard DayPublisherSelf-Counsel Presshttp://www.self-counsel.com

  20. Hi there: I am totally lost and I don't know what to do. My father suddenly passed about in May 2012. He was living with a girlfriend for about 20 years but never married. He died without a will. She listed herself as next-of-kin and did not put me and my brother (my fathers biological children) into any records. My father had business, and properties.. and I just don't know what steps I need to take to see if my and my brother are entitled to anything from my father.. She didn't even notify us right away when he died.. total disrespect.. What do I need to do.. Please help!

    1. As discussed in the article above, when someone dies without a will, a process called \”Administration\” is used to dissolve the estate, including resolving unpaid taxes with CRA, closing bank accounts, and distributing assets to those having a valid claim.For help understanding your position versus the position of your father's common-law spouse, we suggest you contact:Office of the Public Guardian and Trustee, Estates and Corporations,  595 Bay St., Suite 800, Toronto, Ontario, M5G 2M6 weekdays from 8:30 a.m. to 5:00 p.m., Telephone: (416) 314-2800 Toll-free: 1-800-366-0335 TDD: (416) 314-2687  Fax: (416) 314-2781Richard DayPublisherSelf-Counsel Press

  21. My fiance died Sept. 02/12 without a will. I am the resident of her house and we have lived together for approx. 3 years. The residence is in Ontario, Canada and from day 1, her children have come into the house and have been removing objects from the premises. Can I stop them until the courts decide what should be done?

    1. Assuming you cannot simply lock the house and prevent them enter ing, you will need to find a lawyer to help file an application with the courts to order them to stay away until the estate can be properly divided. You will want a lawyer who works in family law and wills.

      Richard Day
      Publisher
      Self-Counsel Press

  22. My Father just passed and left a will that was a kit-type of document. My Father's common-law wife and her lawyer went to the Bank without contacting the Executor (my sister) and moved the money. It had been in a joint account but my Father was the only one that deposited money in it.
    His intention was to split his money 4 ways between his wife and his 3 surviving children. My Step-mother has now said that her lawyer says the will was invalid.
    Are we going to end up in court?

    1. Carole, don't accept at face value a lawyer's statement regarding the validity of your father's will – the lawyer is acting solely in the interests of his client and statements he makes outside a court room have no special weight or value: they are self-interested claims on behalf of his client. If your father signed the will in front of two witnesses who were not beneficiaries of the will, it is very likely valid as a will; it is always possible that clauses he added in the will could be invalid, but that would be revealed in the probate process. The Executor, assuming she has begun the probate process, should notify the court that money has been removed from the account without going through the probate procedure. The court will then indicate if legal help is needed.

      Richard Day
      Publisher
      Self-Counsel Press

  23. My mother passed away a month ago and I haven't heard much from my family regarding her estate. I was told that she didn't have a will. Can you tell me based on the law in Ontario Canada, is there a time limit within which a son or daughter has to put in a claim for their mother's estate?

    1. When a person passes away with or without a will, certain legal procedures must be followed, such as: the CRA will require documentation to close out the tax account; credit cards need to be paid and closed; anyone else with a financial claim against the estate needs to be notified.This is done through the Probate process if there is a will; if there is no will, a process called Administration is used. If nothing is done, the province will intervene and do it. In your case, someone should be applying to \”administer\” the estate. This entails an application to the court and following approval, the administrator deals with the financial and other issues, reporting the to court in a prescribed manner. All possible claimants on the estate need to be notified and next of kin are normally provided an accounting of the estate and how it will be distributed. Our Ontario Probate Kit details the precedes and includes the necessary paperwork to administer an estate. If you want to find out if someone has applied to administer your mother's estate, you can contact the Superior Court of Justice in the county in which she lived at the time of her death, to see if an estate trustee has been appointed. Richard DayPublisherSelf-Counsel Press

  24. My mother is a Canadian citizen. She is writing her will in BC, Canada. Can she named a non-Canadian child as her executor of the will ? She was told by her lawyer in BC that an executor should be a Canadian.

    1. The executor of a will is not required to be a resident of the province or a citizen. An executor who is not a citizen will likely be required to post a bond or surety with the court when the time comes to probate the will.
       
      Richard Day
      Publisher
      Self-Counsel Press

  25. My mother died in 2011, my oldest brother was the executor. The will was really just some handwritten notes on what she wanted each of her children to have. I was informed by her lawyer that it needn't go to probate and it didn't. The brother passed away unexpectedly less than a year later. I received documents which were my mothers along with two bank books (one for each of her grandsons). As there was nothing in a will saying these bank accounts actually were for these two grandsons, they now sit in limbo. I have applied for my mother's death certificate (from New Brunswick) and would like to try to release these funds to her grandsons. What are the steps to proceed with this? There is not a lot of money, but I feel these children have a right to it. I have several letters in her handwriting over the last 12 years discussing this matter. Please advise what I can do. Thank you

    1. AS the appointed executor for your mother's estate is deceased, you can apply to the courts in the province in which your mother died to \”administer\” the estate. Administration is the legal process when there is not an executor available. The process should be fairly simple if there are not large assets like real estate involved. Our advice is to talk to the court people; they are often helpful with regard to how the paperwork needs to be filled in. Richard DayPublisherSelf-Counsel Press

  26. A friend has died and did not have a will. He and his wife had recently split up (but were still married). He has a son from a previous marriage. Is this son entitled to anything (he was his only child)?

    1. When a person dies without a will (\”intestate\”) the correct procedure is to apply to the provincial probate court for permission to \”administer\” the estate. This should be done by an adult (or more than one adult, agreeing to work together). The Self-Counsel books on probate explain the requirements and the process in a step-by-step manner and provide the commonly needed paperwork.  You can find them here. Richard DayPublisherSelf-Counsel Press

  27. what happens when you are seperated, not legally for 3 years with a 14 yr. old child and your husband passes away. a judge has named me as executor to his estate. he left a large credit card owing, that he did all the charging on and is in his name only. am i responsible for this debt. he left no money behind and this visa guy is pressuring me to sell my home to pay this $2500.00 bill.
    do i have to sell the home, or get a loan or sell his truck that i drive to pay this account? please help a.s.a.p.

    1. If I understand what you are saying correctly: you were separated but neither divorced nor had filed papers to begin a divorce, then under law you are still married. Your deceased husband's estate cannot be liquidated or distributed without his debts (taxes, liabilities such as credit cards) being dealt with and the court will want a full accounting before approving the probate. So, technically, his estate is responsible for his debt and his immediate family can only inherit what remains after the debt is cleared. Richard DayPublisherSelf-Counsel Press

  28. my mother died several years ago and her 2nd husband died a few years later. A few years after that some money became available to her estate. Should her children have been notified of that money. We were not and it went to the estate of her second husband who was dead..

    1. We cannot really answer that question. Assuming your mother's estate went through probate and was distributed, then further income received would presumably be distributed to the primary beneficiary of the original estate (her husband, or his estate if he is deceased). If you believe the distribution of the money was handled incorrectly, you will need to consult an estate lawyer for advice. Richard DayPublisherSelf-Counsel Press

  29. I have been living common law for 10 yrs. My CL spouse is still legally married but they have been separated for 10.5 yrs. There is no separation agreement. If he dies without a will what are her rights. Everything we own are in joint names.

    1. If your common law spouse is still legally married to her previous spouse and he dies without a will, she or another family member will need to apply to the court to probate the will. Her rights will vary depending on the province in which her spouse died – for example, last year Alberta changed how an estate is distributed when someone dies intestate, and BC is about to make similar changes (in both cases they more strongly benefit a surviving spouse).Your arrangements (i.e. joint ownership) with your common law spouse are not affected by the issue of her first spouse's death.Richard DayPublisher Self-Counsel Press

  30. A close friend of mine is 78, with no immediate family. I advise/help with Taxes 7 other Financial Affairs. He is not wealthy, but does have some cash stashed away. I've been bugging him to make a Will that leaves his Estate to Charities of his choice. Ho do I explain to him that dying Intestate is nuts?

    Thanks, A.N

    1. Austin, when a person dies without a will and without any immediate family to step forward, the provincial government will appoint an executor (usually a trust company). Expensive advertising will be placed to seek any claims about debts owed. Than taxes and any other provable debt will be paid. The trustee will then, after deducting fees and expenses for the work, “distribute” whatever remains, most likely to a government-approved charity.Your friend would be able to do more with his money by appointing an executor who is not a beneficiary of the will and simply declaring he wants his estate to go to a charity or charities of his choice. The amount remaining after taxes/debts and the executor's costs would be considerably more, and would be used in a way your friend would presumably feel good about. Richard DayPublisherSelf-Counsel Press

  31. My father had just recently passed away with no will, he also had no wife/spouse , just me and my step sister. We are both adults and my step sister has recently applied to be the administrator of the estate. My sister now lives in my fathers house along with all of his assets. The house is paid off in full and my sister says that she will continue to live there.Am I entitled to half of all his assets, house, car, snowmobiles ect. Should it be sold and split or should my sister buy me out?

    1. Normally when someone dies intestate the assets of the estate are used to first pay any debts (such as taxes owed) and then the law requires that the balance is divided among living relatives, usually quite evenly. The best advice we can give you is to retain a lawyer to help resolve the issue as it sounds from your description as if your sister intends to take possession of all the assets by being the executor. Richard DayPublisher

  32. I was adopted at birth and my adoptive mom died in 2003, naming my sister as the executor and power of attorney. I was not named in the will because my mother was angry with me about something or other. She verbally told us what she wanted done with her estate but it wasn't stipulated in her will. My sister was to sell the house and split the proceeds with me, but instead, remortgaged it under her name. The life insurance and RSP was split between us, but nothing else. She even demanded me to pay for half the estate expenses and then there “was nothing else left in the estate”. I know it's too long to fight for anything, but would I have had a chance at contesting?

    1. You could probably have challenged on the grounds that the executor is not supposed to also be a beneficiary of a will. Then it would have been up to the court to either confirm your sister as the executor, or appoint a third party to undertake the task. Ten years later, it is doubtful that anything can be done. Richard Day

  33. A great uncle has died intestate. His siblings all dead. He is survived by 4 nephews and 2 nieces. 1 niece has died. Would the deceased nieces children be due her share of the estate. Or just the surviving nephews and nephews?

    1. Whether the deceased niece's children are due her share of the estate will likely depend upon the estate law of the province in which the great uncle died. Richard DayPublisherSelf-Counsel Presshttp://www.self-counsel.com

  34. My mom passed away had no property and no car and no bills but i cant find her will and everything was left to me she was in a nursing home and really had nothing left what should i do ???

  35. When a person dies without a will in Canada, the probate process is to apply to the provincial probate court to “Administer” the probate. In the case you describe the process should be simple. You will need to notify the Canada Revenue Agency (if they are not owed any taxes, the account is then closed); and then confirm there are no debts owing and no assets remaining that can be distributed. All this is done via forms provided by the Probate Court. Richard Day

  36. Here's a doozy for ya! I was adopted as a baby, met my bio father about 16 yrs ago…..He never married and had no other children. He has been estranged from his family for most of his life, has a surviving brother and sister who don't really seem to care that he's dying. Anyhow, although we didn't really have much of a relationship, he has informed me that he wants me to look after everything and I do believe has named me as beneficiary for anything he has. I just found out that the day before he was transported to the ICU he called upon a priest to assist him in writing a will. I spoke to the priest who admittedly told me that he had never done anything like that before. My concern lies in whether or not the will was correctly written and due to the fact that legally I'm not his daughter could his estate go to other family members even though he has requested otherwise?

    1. Assuming that he named an executor in the will, that person will apply to the probate court to handle the distribution per the stipulations in the will. If there is no executor nominated in the will, someone will need to apply to act as the \”administrator\” in the probate process.Either way, the validity of the will is going to depend on (a) was your father's signing the will witnessed by two competent adults, and (b) whether the surviving brother and/or sister decide to challenge the distribution. Richard Day

  37. My aunt died in Canada with no immediate family and my uncle dealt with the estate without the family knowing the outcome how do I find out

    1. When someone dies the law requires that the probate process is followed (in part because this allows the tax authorities to wrap up the account). Assuming there was a will, the executor (person doing the probate process) is required to notify beneficiaries.Your first step to finding out if probate actually took place would be to contact the court in the location where the deceased person died, to ask if the estate went through probate. If the answer is negative, then you will likely require the help of a lawyer to investigate further. Richard Day

  38. If a common law partner leaves their partner, and intends to remain separated, and the partner dies two weeks later WITHOUT a will, is that former common law partner still considered their partner/spouse for settling the estate or not — since he left her just days before she died?

  39. This would probably require a court decision to sort out. If the common law relationship was in British Columbia and lasted more than two years, then current BC law would consider the relationship a marriage and the fact the surviving partner had recently separated would probably not count – the surviving partner would be consider a surviving spouse. Richard Day

  40. My father died without leaving a will, I am the eldest child but as my brother would not hear of me being an administrator, we applied jointly…. when we went to the undertakers my brother asked for some document which was sealed & could only be opened by the court in his province… the undertaker said he only needed it if property was involved (I had no idea what it was all about)..it seems that dad's bank account was empty & also in a bank in my brothers home province….we are talking millions here, I was never able to find out what it was all about, he said he & his wife had an 'arrangement ' with my dad.. As he returned to his home province & changed his phone number (unlisted) and changed his address, also not listed. I have never been able to find out what happened to everything, I got nothing. Is there any way of finding out, and what that document was….the probate court here told me I needed to contact a lawyer as there was dirty work afoot, but the lawyer was not able to find anything with my brothers name to it….

    1. The probate court was correct, if there is a large amount of money involved you should seek the help of a lawyer who specializes in probate. The lawyer will need to determine:was the estate was probated (which is normally done in the province where the deceased lived)? was there anything in the estate of the deceased, or had the assets been transferred to someone else before death?Answering those two questions will help you determine whether to pursue this and how to do that. Richard Day

  41. The lawyer who made my last will and testament (as well as my wife will) was disbarred recently. In case something happen to us or to one of us would that documents be considered invalid or should we just restructured it in a way that we copy it word for word,gathered witnesses and perhaps have it notarize. In other words it will appear as DIY .Thank you in advance for your input.

    1. A will is valid without a lawyer or a notary so long as the person who wrote the will was mentally competent at the time it was written and two adult witnesses signed as witnesses at the same time (e.g. both witnesses were in the room at the same time). The witnesses do not need to see the content of the will — all they need to witness is the author signing the final page of the will.So, yes, you can copy the will word for word, then get two adults who do not benefit from the will to witness you signing it, and that is all you ned to do – you have a valid will. Richard Day

  42. My mother died with no will and she owns two vehicles and a piece of property. The only living survivors are my brother and myself. How do I start probate? Do I need to start probate because of the property?

    1. The main reasons to start probate are (a) the Canada Revenue Agency will want to know that it will be paid any outstanding taxes and can then close the accounts, and (b) part of the probate procedure is to find out if there are any people/organizations owed any money and either confirm to the court there are none, or that one/some have been found and settled. Richard Day

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