What Happens If Both Parents Die Without A Will?
No one wants to think about it: two parents suddenly passing away, leaving behind children who were still dependent on them.
Unfortunately, the unthinkable can happen. That’s why drafting a Will is one of the most important things you can do as a parent.
In Canada, if someone dies without a Will, they’ve died intestate. That means the rules of your province determine how your estate is distributed—not you.
When you’re a parent, not having a Will is more than just not having a say over who gets the property and assets from your estate. You’ll also be leaving it up to the court to make the final decision on who receives guardianship of your children without any idea of who you think the right person would be.
Keep reading to understand the details of what happens when a parent dies without a Will.
First: What is a Will?
A Will, also known as a “Last Will and Testament,” is a legal document that states your final wishes for how you want your assets and property (or “estate”) distributed after you die.
A Will is essential as it’s the only official way to decide who should receive a portion of your estate (your “beneficiaries”) and who will manage your estate when your Will goes into effect (your “executor”.)
For parents of minors, a Will is especially important, because it is an opportunity to state who you appoint to take care of your minor children (your “guardians”.)
It’s a good idea to seek legal advice if your needs are complex, but you don't necessarily need a lawyer to draft your Will. For basic estate planning, you can create a legally binding Will online.
What happens to children when parents die without a Will?
If you and your children’s other legal guardian (oftentimes, a spouse) pass away before your kids reach the age of majority, they’ll need a guardian for when you're gone. When you don’t have a Will, you’re leaving it up to the court to make the final decision on a guardian for you without the benefit of choosing a family member you trust or even knowing who you think should be placed in this role.
A family member will usually step up and apply for custody, and that’s when the court will decide if that person is fit to be a guardian. If multiple family members or other people apply for custody, the court will weigh its decision based on:
Their biological relationship to your children
Their financial status
Where they live
Their mental and emotional fitness
If no family members volunteer to become your children’s guardian, the provincial government will be in charge of their care, education, and health. That means your children would end up in the foster care system, maybe without their brothers and sisters, until the court can find a permanent legal guardian who is either known to your children by family or close friends or a long-term foster care home.
When there is a Will
When you do have a Will and you want to appoint a guardian, here are two things to keep in mind:
1. In some provinces, your guardianship appointment is only temporary
In some provinces, even when you appoint a guardian in your Will, that person will need to apply for permanent guardianship by law within a certain time period. That time period is extended while the application is being reviewed so your children will stay with the chosen guardian during that period. The court will make a decision about permanent guardianship based on what is in the best interests of the kids.
2. Speak to your guardians before you name them.
As mentioned above, your guardian may need to take certain steps to be named the permanent legal guardian of your children. By law, they don’t need to be family, but finding out ahead of time that the person you want to name is not willing to take those steps is really important. Because if you name them, and they don’t take those steps, the court is in the same position as if you named nobody at all. You’ll also want to give your chosen guardian the chance to seek legal advice about what it means to accept the appointment.
What happens to my children if I die without a Will and I’m not married?
If you die and you’re married, and your spouse survives you, your surviving spouse will maintain legal custody of your child.
If you die and your child’s other legal guardian is your common-law spouse that is a legal guardian of your child, that person also maintains custody of your child.
If you’re divorced and your ex-spouse has legal custody of your child (possibly through a shared custody agreement), they will receive full custody.
If your child’s other parent has never lived with your child or provided financial support, the court will take this into consideration when appointing a permanent legal guardian.
The court’s role is to act in the best interest of the child. This happens on a case-by-case basis after looking at all the relevant factors.
Are my children protected if I’m in a same-sex relationship?
On January 1, 2017, parental recognition in Ontario changed with the All Families Are Equal Act. The act updates the Children’s Law Reform Act (CLRA), which defines parentage and family in the province.
Before the updated law came into effect, non-biological LGBTQ+ parents were required to adopt their own children before they could be considered their child’s parent. This caused complications in the event of the biological parent’s death—in many cases, the surviving spouse was not given automatic custody of their child as was the case in heterosexual relationships.
With the new amendment, if you’re the spouse or common-law partner of the birth parent within 300 days of the birth of your child, you’re presumed to be the child’s parent––and you would receive custody of your child in the event of your partner’s death as the surviving spouse, even if your child were conceived with another person’s genetic material.
What will my children receive from my estate?
When both parents die, a minor child can’t directly inherit any property or assets from an estate.
If you don’t have a Will, you will not have set out any provisions about how that child's inheritance is to be handled (such as creating a trust in the Will for minor children). The purpose of the trust is to name someone to manage the property for your kids until they turn 18 (or a later age if you specify it in your Will).
Without it, the share of your estate to which your children are entitled based on provincial laws will likely need to be paid to a government body to be managed until your children reach the age of majority in your province.
In Ontario, when parents die without a Will, the Office of the Public Guardian and Trustee (OPGT) will be responsible for managing the children's inheritance. The OPGT then becomes the “guardian of property” until the child turns 18. They fulfill the following roles:
Make transactions for the estate
Deposit income for the estate
Make investments for the estate
Maintain and sell estate property
Apply for benefits
File tax returns
Act in legal proceedings
There is a similar process across all provinces and territories, except the age of majority in the territories, New Brunswick, Newfoundland, Nova Scotia, and B.C. is 19.
Many parents wouldn’t want this to happen—do you want a government body managing your estate assets for your children? And do you want them to distribute all of it as soon as your children turn 18?
If you’re not sure just ask yourself the question: Would you have been responsible for a large pot of cash at 18 years old? Probably not. This is one of many reasons why parents create a Will: so they can specify how much of their estate their children receive and at what age and they can put a trusted person in charge of managing it all.
When do I need to update my Will?
When you write a Will, you need to keep it updated. Especially if you’re young, your Will should change with your life circumstances to reflect how you would want your estate distributed.
You’ll need to change your Will when you:
Start a business
Come into a large sum of money
Lose your spouse
Remember: you can change your Will when you get divorced, but your ex-spouse will receive custody of your children in the event of your death unless there is a court order saying that they shouldn’t.
If you’ve created your Will with an online service, like Epilogue, you can log in to your dashboard and make changes on the platform. You’ll still need to print, sign, and witness the new Will. With most online Will platforms, like Epilogue, updates can be made free of charge.