Probate Without a Will in Ontario: Who May Apply and Who Inherits

Who inherits on an intestacy

That is a different question from who may apply to the court. In outline:

• married spouse, no children: the spouse generally takes the whole estate;
• spouse and children: the spouse takes a preferential share (currently $350,000) and then a share of the residue with the children;
• no spouse: children equally; then parents, siblings, nieces and nephews, then more remote next of kin;
• a common-law partner is not a “spouse” for intestacy. They generally do not inherit on this path, though a dependant’s-support claim may still be available.

Shares have to be checked against the actual family and the current preferential-share figure. Do not distribute on word of mouth.

Who may apply

Usually the same people who take under the intestacy: the spouse first, then the nearest next of kin. If the proposed applicant lives in China and is not an Ontario resident, Estates Act s. 5 generally does not permit administration to be granted to a non-resident. The file then has to be structured around an Ontario-resident applicant, or another person applying with the required consents. See heirs in China.

Someone who is not first in priority, with consents

s. 29(2) is the main consent path: where the deceased died wholly intestate, or left a will without an executor willing and competent to take probate, and the persons entitled to administration — or a majority of them resident in Ontario — request that another person be appointed, that person takes the right they had to the grant.

s. 29(3) is different. If special circumstances such as insolvency make it necessary or convenient, the court may appoint someone other than the person who would otherwise have been entitled, on such security as it directs. That is a judicial discretion, not a set of signatures by itself.

Documents

• proof of death;
• proof of marriage, children and kinship — hukou, kinship notarial certificates and birth records from China often need notarization or an Apostille;
• evidence that a reasonable search for a will has been made;
• a list and values of Ontario assets;
• names and addresses of those entitled to inherit;
• renunciations or consents if someone else is applying;
• the bond, or a request to dispense with or reduce it. A recent intestacy file took that path — see administration bond.

Why dual-licensed counsel matters on these files

• This is a court application, not a form-filling exercise. The certificate is issued by the Ontario Superior Court of Justice. Missing materials, the wrong applicant, or an unresolved bond will draw a requisition or a judge’s review.
• Heirs in China are the usual fact pattern, not a side issue. Miao He deals with non-resident applicants, bond relief, and the China-side kinship or inheritance documents that often need notarization and an Apostille.
• Where the rules allow it, dispense with the bond on consent — do not start with a motion. Rule 74.11(5) lets the request go in with the application when every person entitled to share consents and none is a minor or incapable.
• Fees follow the procedure. Estate administration tax is calculated on estate value. Legal fees depend on the path, whether the file is cross-border, and whether bond relief is required. Call 647-930-6688 with the facts.

Frequently asked questions

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