Best Ontario Probate Guide When There Is No Will (Intestate Estate)

If someone died in Ontario without a will, the best probate guide for your situation is one that addresses the intestate estate specifically — not a guide built primarily around the named-executor-with-a-clear-will scenario. Intestacy changes three things immediately: there is no named executor, the court must appoint an administrator, and the administration bond requirement becomes mandatory unless it is waived by court order. For most Ontario families, these differences make the intestate process significantly harder than standard probate — and significantly different from what most generic guides describe.

The short answer on the right approach: the process is manageable without a lawyer for straightforward intestate estates, but you need a guide that covers the application for a Certificate of Appointment of Estate Trustee Without a Will, the Ontario intestacy distribution rules under the Succession Law Reform Act, and the specific bond requirements that apply when there is no will.

What "Intestate" Means in Ontario's System

Ontario uses the term "intestate" to describe a person who died without a valid will — or without a will that covers all their property. When someone dies intestate in Ontario, their estate does not automatically belong to the closest relatives. Instead, the Succession Law Reform Act prescribes a specific distribution hierarchy, and a court-appointed administrator (formally called an Estate Trustee Without a Will) must first obtain a Certificate of Appointment before distributing anything.

This is the document the court issues when there is no will. It is the intestate equivalent of what is commonly called a grant of probate. The process for obtaining it runs through the Superior Court of Justice, just as with a standard probate application, but uses different forms and has the mandatory bond requirement layered on top.

How Intestate Probate Differs from Standard Probate in Ontario

Ontario's Intestacy Distribution Rules

Under the Succession Law Reform Act, Ontario distributes an intestate estate according to a specific statutory hierarchy. The rules as they currently stand:

If the deceased leaves a spouse but no children: The spouse inherits the entire estate.

If the deceased leaves a spouse and children: The spouse receives the first $350,000 (the "preferential share") plus one-third of the remainder. The remaining two-thirds is divided equally among the children.

If the deceased leaves children but no spouse: The estate is divided equally among the children. If a child has predeceased but left grandchildren, those grandchildren share that child's portion.

If the deceased leaves no spouse and no children: The estate passes to the nearest surviving relatives in this order: parents, siblings (with children of deceased siblings sharing their parent's portion), nephews and nephews equally, next of kin.

If there are no living relatives: The estate passes to the Ontario government (escheats to the Crown).

"Spouse" in Ontario includes both legally married spouses and common-law partners who have lived together in a conjugal relationship for at least three years (or one year if they have a child together). However, common-law partners in Ontario have no automatic right to the preferential share under the current Succession Law Reform Act — this is a major and often surprising gap that the guide addresses in detail.

The Administration Bond: The Biggest Practical Obstacle

When there is no will, anyone seeking to administer the estate must post an administration bond equal to twice the value of the estate. For an estate worth $400,000, the required bond is $800,000. This bond is obtained from a commercial surety company, and the premium is typically 0.5% to 1% of the bond amount per year — meaning several thousand dollars in premiums for a moderately sized estate.

This requirement can effectively block the administration of an estate if the bond cannot be obtained or afforded.

The waiver process. The court has discretion to dispense with the bond requirement if all adult beneficiaries who are capable of consenting sign executed consent forms agreeing to waive it. This requires a motion to the court. The process is straightforward when all beneficiaries are adult, capable, and cooperative — which covers many Ontario intestate estates.

When the bond cannot be waived. If any beneficiary is a minor, the Office of the Children's Lawyer must be involved and cannot consent on the minor's behalf to waive the bond without independent review. If any beneficiary is mentally incapable, the Office of the Public Guardian and Trustee is involved. In these situations, the bond requirement becomes much harder to circumvent without professional help.

Who Has Priority to Apply as Estate Trustee Without a Will

The court follows a priority order for appointing an administrator when there is no will:

1. The surviving spouse or common-law partner
2. The children of the deceased
3. The grandchildren
4. The parents
5. The siblings
6. The next of kin in order of degree of relationship

If multiple people at the same priority level wish to apply — for example, three adult children — they must either agree on who will act or file jointly. If they cannot agree, the court can appoint one of them or a trust company.

The person who applies must be an Ontario resident, or otherwise comply with the non-resident bond requirements (which, for an intestate estate, means a double bond — once for the standard intestate requirement and once for the non-resident requirement, unless both are waived).

Who This Guide Is For

The Ontario Probate Process Guide is the right resource for intestate estates when:

• You are a surviving spouse, adult child, or next of kin seeking to administer an Ontario estate where no will has been found
• The estate is straightforward — real estate in Ontario, bank accounts, registered accounts, a vehicle
• All adult beneficiaries are cooperative and willing to sign consent forms to waive the administration bond
• You want to understand the Ontario intestacy distribution rules before approaching beneficiaries about their expected shares
• The estate qualifies for the simplified Small Estate Certificate process ($150,000 or less), which uses Form 74.1A even for intestate estates

Who This Guide Is NOT For

A self-serve guide is not the right primary resource for an intestate estate when:

• Relatives are disputing who has priority to administer the estate
• The bond waiver is not achievable because a minor or incapable beneficiary is involved and professional guidance is needed to navigate the Children's Lawyer process
• The intestacy distribution is being contested — for example, a common-law partner claiming entitlement that the statutory rules do not automatically provide
• There is reason to believe the deceased had a will but it has not been found — the guide flags this as a situation requiring a thorough search before filing any intestate application, because filing an intestate application when a will exists can trigger significant complications
• The estate is insolvent — creditors must be prioritized before any distribution to heirs, and the order of priority requires careful analysis

The Critical First Step: Confirming There Is No Will

Before filing any intestate application, a thorough will search is legally and practically essential. Ontario maintains a central will registry where solicitors can deposit wills for safekeeping, but there is no mandatory will registration system — a will can be valid and legally binding whether or not it was registered anywhere.

The search must include: the deceased's home, safety deposit boxes, the files of any lawyer who advised them, and the Superior Court of Justice (which maintains a will deposit register). Filing an intestate application when a will actually exists is a primary cause of court rejections and can create serious complications if the will surfaces after assets have been distributed.

What Happens if No One Is Willing or Able to Administer the Estate

If the eligible next of kin cannot be located, are all minors or incapable, refuse to act, or reside outside Ontario and cannot obtain the bond, the Office of the Public Guardian and Trustee can act as estate trustee of last resort. However, this is not a free service — the OPGT charges statutory fees billed to the estate, does not provide legal advice to the public, and will not assist anyone in preparing their own court applications. The OPGT is the fallback when no private administrator is available or willing, not a resource for self-represented applicants.

Frequently Asked Questions

Can I administer an Ontario intestate estate without a lawyer?

Yes, for straightforward estates where all beneficiaries are cooperative adults and the bond waiver is achievable by consent. The Ontario court allows self-represented applicants. The process requires completing Form 74H (for standard estates) or Form 74.1A (for estates at or below $150,000), obtaining beneficiary consents for the bond waiver, and filing via Justice Services Online with the original documents mailed to the appropriate Superior Court of Justice location.

How does the Estate Administration Tax work for an intestate estate?

The EAT calculation is identical whether or not there is a will — $0 on the first $50,000 of estate value, $15 per $1,000 above $50,000, rounded up to the nearest thousand. The tax is paid by bank draft at the time of filing.

What is the preferential share and does it apply to common-law partners?

The preferential share is the first $350,000 of an intestate estate that goes to the surviving spouse before the remainder is divided. Under Ontario's current Succession Law Reform Act, the preferential share applies to legally married spouses. Common-law partners — even those who lived together for many years — do not automatically receive the preferential share under intestacy law. A common-law partner may have other claims (such as unjust enrichment or resulting trust), but these require a separate legal process. This is one of the most significant gaps in Ontario's intestacy rules and one of the most common sources of family conflict.

How long does intestate probate take in Ontario?

The timeline is similar to standard probate — 6 to 8 weeks at smaller courthouses, 4 to 6 months at the Toronto Superior Court of Justice. The intestate process has an additional step: gathering beneficiary consents for the bond waiver before filing, which can add several weeks if beneficiaries are geographically scattered or slow to respond.

What happens to RRSP, TFSA, and life insurance when someone dies without a will?

Registered accounts and life insurance policies with named beneficiaries (other than the estate itself) bypass the estate entirely and go directly to the named beneficiary — regardless of the intestacy rules. The intestacy distribution only affects assets that form part of the legal estate: solely held bank accounts, real estate not in joint tenancy, investments without named beneficiaries, and personal property.

Can the court reject an intestate application for the same reasons it rejects a standard probate application?

Yes. The court applies the same technical review standards — name consistency between documents, proper affidavit commissioning, correct form versions downloaded from ontariocourtforms.on.ca, and complete supporting documentation. Intestate applications have one additional common rejection trigger: missing or incomplete documentation establishing the applicant's priority to apply (proof of relationship to the deceased, death certificates for relatives who predeceased, and evidence that no will exists).

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