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 does 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 your provincial government decides 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.
When someone dies with a Will, the court steps in to clarify grey areas—but legal matters become especially messy when children are involved. 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 states who you appoint to take care of your minor children (your “guardians”.)
While it’s always great to seek legal advice first if you need a particularly complex Will for a complicated estate, you don’t need to. You can create a legally binding Will online without seeking the advice of a lawyer.
What happens to children when parents die without a Will?
If you and your children’s other legal guardian or spouse pass away before your kids reach the age of majority, they’ll need another guardian. 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 age
- 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 friendship 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 lasts only 90 days.
Even when you appoint a guardian in your Will, that person will need to apply for permanent guardianship by law before the 90 days is up. The 90 days gets extended while the application is being reviewed so your children will stay with the chosen guardian during that period. The court will decide 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 your proposal.
Applying for guardianship
In Ontario, when someone is applying for guardianship, they’ll need to:
- File a Form 8: Application
- File a Form 35.1: Affidavit in support of claim for custody or access
- File a police record check
- Sign a form that grants permission to children’s aid societies to provide information to the court about your ability to be a guardian
Check out these handy links with information on how to apply for guardianship in:
What happens to my children if I die without a Will and I’m not married?
If you die and you’re married, your surviving spouse will automatically maintain legal custody of your child.
If you die and your child’s other legal guardian is your common-law spouse, that person also maintains custody of your child.
If you’re divorced and your child’s co-parent already has legal custody of your child 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 of 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 was 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.
When you don’t have a Will, you will not have created a trust for your 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 inheritance of the children (or a mentally incapable adult). 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
- Pay bills
- 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.
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:
- Get married
- Buy property
- Have children
- Start a business
- Come into a large sum of money
- Get divorced
- 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 make your Will with a lawyer you’ll create a codicil when you change your Will: a revised document that’s attached to your original Will that marks the changes you’ve made to your estate planning.
Your codicil will refer to previous versions of your Will and clarify all amendments. Your codicil needs to be in writing, dated, and signed by you and two witnesses.
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.