Died Without a Will in Ontario: Who Inherits the House, and Who Can Actually Sell It

When the home sits in one name and there is no will, it does not simply pass to the family. Ontario law runs a fixed formula to divide it — and the person who inherits is not automatically the person allowed to sign the sale.

I’m Arthur Zhao. Here is a scene I have watched play out more than once: a parent passes away, the family home is still registered in that one person’s name, and everyone assumes it simply becomes theirs — until the moment they try to list it or sign something, and discover it is not that simple at all. With no will, Ontario does not let the house drift to whichever relative seems obvious; it runs a formula written into the statute. And whether you can put pen to paper to sell the house is a completely different question from whether you are an heir.

This piece covers one specific situation — a solely owned home and no will — and what surprises families most: how the house is divided, who is actually allowed to deal with it, and a handful of details that even many articles skip over yet quietly decide the outcome. It is background, not a substitute for the advice a lawyer gives you on your own facts.

The one situation this covers — and the one it does not

Death, property and inheritance cover a lot of ground. This piece locks onto the case that catches families most off guard: the home is registered in the deceased person’s name alone (or held as tenants-in-common in defined shares), and there was no will.

One common situation is deliberately out of scope. If a home is held in joint tenancy — the way many couples hold theirs — then when one owner dies the property passes to the surviving owner by right of survivorship, and it never enters the intestacy formula at all. That is a different path entirely. So step one is always the same: find out exactly how the property is registered. Everything below assumes sole ownership and no will.

Inheriting the house is not the same as being able to sell it

This is where families get stuck. They assume “I am the only child, so the house is mine, I will just sell it” — but where there is no will, no heir automatically holds the power to deal with the property.

To lawfully sign an agreement of purchase and sale and sign the transfer on closing, someone must first be appointed by the court to administer the estate. With no will, that appointment is a Certificate of Appointment of Estate Trustee Without a Will. Only the trustee named on that certificate can sell the house on the estate’s behalf.

Who may apply? Under Ontario’s rules, a married spouse and the next of kin have priority. And because there is no will, the court will generally require an estate administration bond — potentially up to double the value of the estate — unless a judge orders otherwise (for example, where all beneficiaries consent). These are procedural details to hand to a lawyer.

How the law divides it: the Succession Law Reform Act order

Once a home falls into intestacy, Part II of the Succession Law Reform Act sets a fixed order — in plain terms, “first look for a spouse, then look for children.” One term runs through all of it: the preferential share, the amount a spouse takes off the top before anything else is divided.

A spouse and children: the split changes with how many children there are

The two numbers people get wrong: the $350,000, and the words “net value”

The first trap is the preferential share amount and which date it tracks. The figure is not in the Succession Law Reform Act itself — it sits in the companion regulation, O. Reg. 54/95, s.1: for deaths before March 1, 2021 the share is $200,000; for deaths on or after that date it is $350,000. The pivot is the date of death — not the date the family applies for a certificate or distributes the estate.

The second trap is more common. Both the spouse’s share and the shares divided afterward are measured against the estate’s net value, not the home’s market price. Section 45(4) defines net value as the value “after payment of the charges thereon and the debts, funeral expenses and expenses of administration” — so you first subtract the outstanding mortgage, debts, funeral costs, and the cost of administering the estate. A home worth over a million on paper but carrying a large mortgage can have a far smaller net value to divide than the sticker price suggests.

“Spouse” means married — common-law partners and the separate support route

This is the point I most want you to remember. Section 1(1) of the Succession Law Reform Act is explicit: for the inheritance part of the Act, “spouse” carries the Family Law Act s.1(1) meaning — two people who are (a) married to each other, or (b) entered into a marriage that is voidable or void, relied on in good faith (branch (b) is narrow but real). Which means: in Ontario, a common-law partner who never married does not inherit the other’s home under the intestacy formula, no matter how many years they lived together.

But do not read that as “a common-law partner gets nothing.” Ontario law provides a different route: Part V of the Act (Support of Dependants) lets a “dependant” — someone the deceased was supporting or was legally obligated to support — bring a claim for support against the estate. In that Part, “spouse” takes the broader Family Law Act s.29 definition, which adds two kinds of unmarried partner: those who have (a) cohabited continuously for at least three years, or (b) are the parents of a child and in a relationship of some permanence (branch (b) has no three-year requirement).

Do not blur the two paths: three years of cohabiting opens a dependant-support claim, not an inheritance. Part II inheritance recognizes only a married spouse; a common-law partner’s path is dependant support, not inheritance — legally two different things, with different tests, timelines and outcomes. Get a lawyer to assess it.

Separated but not divorced: since 2021, no inheritance (older guides miss this)

There is an important 2021 change that older articles routinely omit. The Act’s new section 43.1 says that any provision giving a spouse a property entitlement does not apply if the two were “separated” at the time of death. A married couple who have genuinely separated no longer have the survivor inherit automatically under the intestacy rules.

What counts as “separated”? Section 43.1(2) defines it, and it generally includes: living separate and apart as a result of the breakdown of the marriage for three years immediately before the death; having a valid separation agreement under Part IV of the Family Law Act; or a court order dealing with their rights and obligations (rely on the full text of the section for the exact list). This quietly changes the outcome for many “split up but never divorced” families — check the section and consult a lawyer if it applies.

No spouse: the estate goes to the nearest kin equally

If there is no surviving spouse, the estate moves down the bloodline. Section 47(1) divides the property equally among the descendants (issue) of the nearest degree. If only children survive, they share it equally.

Section 46(3) handles a common wrinkle: if a child died before the parent but left living descendants of their own (grandchildren, say), that child is counted as if still alive for the purpose of the shares, and their portion passes down to their descendants. Only if there are no descendants at all does the estate move further out — to parents, siblings and beyond. Leave those more distant tiers to a lawyer on the specific facts.

When you actually sell: the certificate, the estate tax, the transfer

Once the shares are clear, actually selling or transferring the house runs into three practical gates:

① Get the authority first. As above, with no will a court must appoint an estate trustee without a will; only the trustee can sign the agreement of sale and the transfer on closing.
② Estate Administration Tax. Per ontario.ca, an estate valued at $50,000 or less pays none; above that, tax is $15 for every $1,000 (or part of $1,000) of the value over $50,000 (current rules in force since January 1, 2020). Estates of $150,000 or less can also use the simplified Small Estate Certificate stream.
③ Transfer the property. After the certificate issues, the land is first transmitted into the trustee’s name to hold in trust for the estate, and is then sold or transferred to the beneficiaries, with the corresponding registration and any applicable taxes handled at the land registry. Let a lawyer handle the specific forms and registrations.

Arthur Zhao

Real Estate Broker · FRI · ABR · SRS · PSA · MCNE · E-PRO · CLHMS & GUILD Elite · REAIS

VP & Branch Manager, Bay Street Group Inc.

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