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How to Make a Claim as an Heir

A Guide for Lawyers and Families

If you die without a will in Ontario and the Office of the Public Guardian and Trustee has been appointed by the Court as the estate trustee, any person claiming a share of your estate will have to establish they are entitled to inherit. In this case, the final duty of the Public Guardian and Trustee is to distribute the net estate to the lawful heirs under the law of Ontario. In determining the rights of anyone to share in the estate of a deceased person without a will, the effective date is the date of death of the deceased.

How an Estate is Distributed

Since 1978, Ontario law states that the estate of an intestate deceased person is distributed as follows:

  1. To the spouse, if living, the first $200,000 (effective April 1, 1995);
  2. To the spouse and children, the excess over $200,000 shared according to specific rules;
  3. If no spouse, to the children and descendants of the deceased, if any;
  4. To the parents of the deceased if no spouse or descendants;
  5. If no surviving parents, to brothers and sisters, and children of the deceased brothers and sisters;
  6. If no brothers and sisters, then to living nieces and nephews;
  7. When more remote relatives are involved, special instructions may apply.

NOTE: Half-blood relatives share equally with whole-blood relatives. Children include those born outside marriage and adopted ones.

How to Prove You are an Heir (Beneficiary)

Here's what the Public Guardian and Trustee needs to prove you're an heir. Evidence submitted must include at least two sworn statements or affidavits. The first statement must be made by a person claiming a share of the estate (called the claimant). The second corroborates the first and is made by someone who has personal knowledge of the family history, but no monetary interest in the estate. If this second person is not a resident of Ontario, a third sworn statement must be obtained from an Ontario resident who knew the deceased, stating his/her knowledge of the deceased's reputation as to marital status and the existence of children born inside or outside marriage or adopted.

The sworn statement of the claimant should include:

  • The name of the deceased, date and place of death, last residence and occupation and other known identifying information.
  • The name of the surviving spouse, if any, the date and place of marriage with the marriage certificate attached. Similar details are required for all marriages of the deceased and spouse or former spouses. Specify if one marriage only is involved.
  • If there is a surviving spouse, a statement that the spouse is living, that the marriage had not been dissolved prior to the death, and that there is no existing separation agreement depriving the spouse of a right to share in the estate.
  • If more than one marriage for either spouse is involved, the relevant information must be supplied and official documents produced to establish the dissolution of the former marriage or marriages by court decree or death.
  • The names of all naturally born or adopted children, specifying that they are all the children born to or adopted by the deceased, and further specifying that none were adopted out of the parent-child relationship with the deceased by any other person or persons. Birth certificates and adoption orders showing parentage must be produced. If there are no children, the affidavit must include this information.
  • Deaths must be stated and corroborated by certificates. Changes of name due to marriage must be identified and supported by marriage certificates.
  • If the deceased was not born in Canada, the claimant should state when the deceased came to Canada. Also, if a claimant is a subject of a country other than Canada, the claimant must establish his/her national status.

When claimants are anyone other than a spouse and children, there must be statements to the effect that there is no one in the degree of spouse, child, parent, etc., and the deaths of the spouse, children and parents must be stated in the affidavit and supported by certificates.

  • Children include those born outside marriage and adopted children, but not those adopted out of the family.
  • Certificates required to prove heirship must be "long-form" certificates. For example, birth certificates would show the names of parents. If such certificates can't be obtained, a statement of your searches and inquiries and results achieved should be included in the material submitted. If the Public Guardian and Trustee's office is satisfied that it's impossible to obtain such certificates, it may accept secondary evidence such as entries in family bibles, Parish records, copies of tombstone inscriptions, or census records properly certified.
  • Where affidavits, court testimony, or certificates are prepared outside of Canada in a language other than English or French, they must be translated into English. A sworn statement of the translator in English setting out his/her qualifications to translate and stating the translation is true and correct must be attached.
  • The signatures and seals on all original affidavits or Court testimony must be authenticated in the country where the material is prepared, and then vised (a special certification) by the British or Canadian Embassy where the documents were prepared. Outside the British Commonwealth if documents are not completed in a British or Canadian Embassy, the truth of written statements must be affirmed in the presence of a notary. The certification must be translated into English or French by a qualified translator as above. Within the British Commonwealth, affidavits and statutory declarations taken before a commissioner for affidavits are acceptable.
  • The Public Guardian and Trustee reserves the right to require additional evidence.
  • All documents submitted to the Public Guardian and Trustee will become the sole property of the Office Public Guardian and Trustee and will not be returned.

HOW TO FIND AN ESTATE TRUSTEE

You may be wondering what has happened to the estate of a family member.

First, check with the Ontario Court (General Division) nearest the place where your relative lived at the time of his or her death, to see if someone was appointed estate trustee. (This used to be called either an administrator or executor, depending on whether a will was probated.) There may be a small fee involved in doing a search, or you could hire a local lawyer to do the search for you.

If you find that the OPGT has been appointed by the court to administer the estate, contact our Estates and Corporations unit. Have all the information on your relative handy. Please also read our requirements to prove that you are an heir. (How to prove you are an heir) This tells you what you need to do to prove your claim. Keep in mind that you must prove that you (and perhaps others) are the closest eligible next-of-kin to the deceased person.

If no one has been appointed as estate trustee, you may have the right to do so yourself. This will make it easier for you to get information from Revenue Canada, banks and other institutions which may be holding money for the deceased.

If the estate was administered by someone, and you were entitled to a share but the estate trustee could not find you, the money could have been paid to the Accountant of the Ontario Court, to be held until you or your next-of-kin claimed it.

FOR MORE INFORMATION...

If you need more details, contact:

Office of the Public Guardian and Trustee,
Estates and Corporations,
595 Bay St., Suite 800,
Toronto, Ontario, M5G 2M6
weekdays from 8:30 a.m. to 5:00 p.m.,
Telephone: (416) 314-2800
Toll-free: 1-800-366-0335
TDD: (416) 314-2687
Fax: (416) 314-2781

Costs

The Public Guardian and Trustee is not responsible for any costs incurred by any person who claims to be an heir to the deceased. Claimants must bear their own costs.