What Happens If You Die Without a Will in Canada?

An estimated 50% of Canadian adults do not have a valid will. When they die, their estates are distributed under provincial intestacy laws — rigid formulas that frequently produce outcomes their families would find shocking. From common-law partners left with nothing, to children from previous relationships ignored, to the Public Trustee managing a minor's inheritance — the consequences of dying intestate in Canada can be severe.

This guide explains exactly what happens to your estate in each major Canadian province if you die without a will, how the administration process differs from a testate estate, and why a will is one of the most important documents you'll ever create.

Provincial Intestate Succession: The Key Differences

Unlike the UK (which has a single set of intestacy rules for England and Wales), Canada has 10 provinces and 3 territories, each with its own intestacy legislation. Here is a snapshot of the key distributions:

The Common-Law Partner Problem in Canada

The variation between provinces on common-law partner rights is one of the most dangerous areas in Canadian estate planning. The situation is:

• BC (WESA): Common-law partners of 2+ years have the same rights as married spouses — the most protective in Canada
• Alberta: "Adult Interdependent Partners" (3+ year cohabitation, or any length if a child is involved) have rights under the Wills and Succession Act
• Saskatchewan/Manitoba: Some common-law rights after qualifying period
• Ontario: Common-law partners have no automatic intestacy rights — they can only apply as a "dependant" under the SLRA, which is a court process
• Quebec: "De facto spouse" (common-law) receives absolutely nothing under intestacy — only legally married spouses have intestacy rights
• Nova Scotia, PEI, New Brunswick, Newfoundland: Generally limited or no common-law intestacy rights

The bottom line: if you are in a common-law relationship, the only guaranteed way to protect your partner is a will. Do not rely on provincial intestacy rights, which may not apply in your province or may be subject to challenge.

Administrator vs Executor: The Intestacy Process

When you die with a will, your named executor applies for a Certificate of Appointment of Estate Trustee (Ontario) or equivalent document in other provinces. When you die intestate, a family member must apply for Letters of Administration — and the process is more complex:

Priority for administration

Courts follow a priority order for who may be appointed administrator, which mirrors the intestacy distribution order:

1. Surviving spouse (or common-law partner where recognised)
2. Children
3. Grandchildren
4. Parents
5. Siblings
6. Other relatives
7. Creditors (if no qualified relative applies)
8. Public Trustee (as last resort)

Bond requirement

Intestate administrators may be required to post a bond (typically equal to the value of the estate) to protect potential beneficiaries. This adds cost and complexity. An executor under a will is typically exempt from bonding unless the will requires it.

What Happens to Minor Children Without a Will?

When a parent dies intestate leaving minor children, two urgent problems arise:

Guardianship

Without a will, you cannot name a guardian for your children. Courts must determine who cares for them, potentially after an expensive and emotionally devastating hearing involving competing family members.

Children's inheritance

Minor children cannot manage money. Under intestacy, their share is held by the provincial Public Trustee until they turn 18. At 18, they receive the full amount outright — often an inappropriate age for a potentially large inheritance. A will allows you to specify a higher age (25, 30, or specific milestones) for distribution.

The Tax Consequences of Dying Intestate

In Canada, the primary death tax is through the deemed disposition of assets (capital gains) on the terminal tax return. A well-drafted will can minimise these consequences:

• Spousal rollover: Assets passing to a spouse (via will or intestacy) generally roll over at cost basis — deferring capital gains. This benefit applies regardless of whether there is a will.
• RRSP/RRIF: If your RRSP/RRIF passes to a non-spouse beneficiary (including children) without a named beneficiary designation, the full value is included in your terminal return — potentially a massive tax bill that a will (or beneficiary designation) could have helped structure more efficiently.
• TFSA: Without a successor holder designation, the TFSA ceases to generate tax-free income from date of death — every month of delay in winding up the estate means tax on income earned.

Real Cost Scenario: Intestate vs Testate Estate in Ontario

Consider a $750,000 estate in Ontario (home worth $700,000 + $50,000 in savings), surviving common-law partner of 10 years, two adult children:

With a will:

• Partner inherits everything as specified
• Probate fee: approximately $10,500
• Executor appointed — minimal additional cost
• Total extra cost: ~$10,500

Without a will:

• Common-law partner inherits nothing (Ontario intestacy)
• Two children inherit everything equally
• Administration application required: $3,000–$5,000
• Bond possibly required: thousands more
• Partner may apply as dependant: legal fees $5,000–$20,000+
• Court proceedings if children dispute: potentially $20,000–$50,000+

Frequently Asked Questions