Probate in Ontario With No Will: Who Can Sell the House and Who Inherits It

The short answer

Probate in Ontario with no will follows the same court process as an estate with a will, with three differences that matter for selling a house. The court chooses who acts for the estate, the person who applies usually has to post a bond and the money from the sale is shared under a formula in Ontario law rather than by the deceased’s wishes.

Until the court appoints an estate trustee, nobody has the authority to sign an Agreement of Purchase and Sale for the house. Not a spouse, not the eldest child and not someone who held a power of attorney while the owner was alive, because section 12 of the Substitute Decisions Act ends a continuing power of attorney when the person who gave it dies.

This post explains how each step works under Ontario’s statutes and the province’s probate guidance. It is general information and not legal advice. A death without a will raises questions that only an estates lawyer can answer for a specific family, so take this to one before you list.

Probate Ontario no will: who can apply to sell the house

Ontario’s probate page says that if no will exists, the deceased’s spouse or common-law partner usually has the first right to apply. After them, a close adult relative can apply: a child, parent, grandchild, sibling or nephew or niece. The court may appoint the relative it considers most appropriate in the circumstances.

Section 29 of the Estates Act gives the court that choice. It may appoint the person the deceased was married to or was living with in a conjugal relationship outside marriage immediately before the death. It may instead appoint the next of kin or that partner together with the next of kin. The same section lets the people entitled to administration ask the court to appoint someone else in their place.

Being appointed is not the same as inheriting. A common-law partner can be the person who applies and signs for the estate while having no share of it under the intestacy rules explained below.

Whoever is appointed takes over the house. Section 2 of the Estates Administration Act says property owned by the deceased, other than property that passes to someone by survivorship, vests in the estate trustee as trustee for the people entitled to it by law.

What the court asks for before the house can be sold

Ontario says that where the deceased’s real property must be sold, a Certificate of Appointment of Estate Trustee or a Small Estate Certificate should be obtained before anyone enters into an Agreement of Purchase and Sale. The Small Estate Certificate is available for estates valued at up to $150,000, which rules it out for most Toronto houses.

A no will application usually needs more paperwork than one with a will:

Document	When Ontario says it is needed
Application, Form 74A	The court application itself
Consent to Applicant’s Appointment as Estate Trustee, Form 74G Part B	Where a person dies without a will
Estate administration bond (Form 74L or 74M) or a motion to dispense with it	Where a person dies without a will, among other cases
Estate Administration Tax	Paid when the application is submitted

Ontario says applications are typically processed within 15 business days, but it may take longer if documents are missing or the material raises an issue a judge has to decide. Our post on whether you can sell a house before probate in Ontario covers the certificate, the tax and the timing in more detail.

The estate administration bond

The bond is the step that most often surprises families. Ontario describes it as a guarantee that the estate trustee will carry out their legal duties. If they do not, the guarantor, called a surety, could be held responsible for the amount of the bond.

Ontario’s probate page sets out the main rules:

• Amount. The bond must be double the value of the estate unless a judge orders otherwise. Section 37 of the Estates Act lets a judge reduce the bond or dispense with it under special circumstances.
• Who can be a surety. An insurer licensed in Ontario to write surety and fidelity insurance. Personal sureties can also be proposed: two for an estate valued at over $100,000 and one for an estate valued at $100,000 or less.
• Personal sureties. Each must be an adult Ontario resident with enough assets to pay the bond and cannot be a lawyer or court registrar.
• Asking for no bond. A judge can order that no bond is required. Ontario notes that the motion can be complicated and suggests speaking with a lawyer.

Section 36 of the Estates Act also lists cases where a bond is not required. One is where administration is granted to the surviving spouse, the estate’s net value does not exceed the preferential share described below and an affidavit of the estate’s debts is filed. Another covers some small estates. Your lawyer can say whether either fits.

Who inherits the house when there is no will

Part II of the Succession Law Reform Act decides who shares the estate. The house itself is usually sold and the money divided, so the formula below decides who receives the proceeds.

Who survives the deceased	How the estate is shared
A spouse and no children or other descendants	All to the spouse
A spouse and descendants, estate’s net value not more than $350,000	All to the spouse
A spouse and one child	The first $350,000 to the spouse, then the rest split half to the spouse and half to the child
A spouse and two or more children	The first $350,000 to the spouse, then one third of the rest to the spouse and two thirds shared equally among the children
No spouse, with descendants	Shared equally among the nearest generation of descendants
No spouse or descendants	To the parents, then brothers and sisters, then nephews and nieces, then the next of kin
Nobody in any of those groups	To the Crown

The $350,000 is called the preferential share. Ontario Regulation 54/95 sets it at $350,000 for people who die on or after March 1, 2021 and $200,000 for deaths before that date. “Net value” means the value after debts, funeral expenses and the costs of administering the estate.

If a child died before the parent and left children of their own, the Act treats that child’s share as passing to them.

Here is an illustration with round numbers, not a real family. A married parent dies without a will on or after March 1, 2021, leaving a spouse and two adult children. After the house is sold and the debts, funeral and administration costs are paid, the estate’s net value is $1,250,000.

Step	Amount
Net value of the estate	$1,250,000
Preferential share to the spouse	$350,000
Rest of the estate	$900,000
Spouse’s one third of the rest	$300,000
Children’s two thirds of the rest	$600,000 in total, $300,000 each
Spouse’s total	$650,000

Spouses, common-law partners and separation

The word “spouse” in these rules has a narrow meaning. The Succession Law Reform Act borrows the definition in section 1 of the Family Law Act, which covers two people who are married to each other. A common-law partner does not take a share under Part II.

That does not always leave a common-law partner with nothing. Part V of the Succession Law Reform Act lets a dependant apply to the court for support from the estate where the deceased did not make adequate provision for them. A dependant is a spouse, parent, child or sibling the deceased was supporting or was legally obliged to support immediately before the death. Part V uses a wider definition of spouse than Part II. Whether a claim exists is a question for a lawyer. Even so, the estate trustee should know about it before the sale money is paid out.

Separation can also change the result. Section 43.1 says the spouse’s entitlement does not apply if the couple were separated at the death. Examples in the section include living apart for three years because the marriage broke down or signing a valid separation agreement, where the couple were still living apart when the person died.

The married spouse’s six month election

A married spouse has a choice that can affect timing. Section 6 of the Family Law Act says a surviving spouse of someone who died without a will must elect either to take their share under the Succession Law Reform Act or to receive an equalization entitlement under section 5 of the Family Law Act instead.

The election must be filed with the Estate Registrar for Ontario within six months after the death. If it is not, the spouse is treated as having chosen the intestacy share unless a court orders otherwise.

The same section says no distribution of the estate may be made within six months of the death unless the surviving spouse gives written consent or the court authorizes it. Ask the lawyer how that affects paying out the money from a sale that closes in the first six months.

Do all the heirs have to agree to sell?

Section 17 of the Estates Administration Act separates two kinds of sale:

1. A sale to pay debts. The estate trustee can sell real property to pay the estate’s debts without the heirs’ agreement.
2. A sale only to divide the estate. This needs the approval of a majority of the people entitled to the property who together hold at least half of the interests. The Children’s Lawyer acts for a minor heir and the Public Guardian and Trustee for a mentally incapable heir who has no guardian or attorney for property.

Section 9 of the same Act adds a deadline. Real property that is not sold or distributed within three years of the death vests in the people entitled to it, unless the estate trustee has registered a caution in the land registry office. When heirs disagree about keeping or selling, raise this with the lawyer early.

What to do next

A sale without a will usually runs in this order. Work through it with an estates lawyer:

1. Confirm there is no will, including with the deceased’s lawyer. Find out how the house was owned.
2. Agree within the family who will apply and gather the consents of the other heirs.
3. Ask the lawyer about the bond, an insurer or personal sureties or a motion to dispense with it.
4. Get a supportable value for the house as of the date of death. Our free home valuation is a starting point for that conversation.
5. Apply for the certificate and wait for it before signing any Agreement of Purchase and Sale.
6. Plan the payout around the spouse’s six month election and any dependant’s claim.

The tax side of an estate sale is covered in our post on selling a parent’s house after death and the Ontario taxes. Our guide to selling an estate home in Toronto covers the whole process and our home selling services explain how we work with estate trustees and their lawyers. If you are handling a Toronto house for a family member who died without a will, contact us to talk through the timing.