Can an Adult Child Be Made to Leave a Deceased Parent's Home?

You may have lived with a parent for years, perhaps as their caregiver, perhaps because it was simply home. When they die, it is natural to wonder whether you can stay, and whether the estate trustee or your siblings can ask you to leave.

There is no single date on which an adult child must move out. The answer depends on who owns the home, who is in charge of the estate, and whether the house has to be sold. This article walks through those pieces in plain language.

Start with how the home was owned

Ontario co-owners hold title either as joint tenants or as tenants in common. The difference matters a great deal at death.

If you were a co-owner with your parent as a joint tenant, the home may already be yours, or shared with the other survivors. If your parent owned it alone or as a tenant in common, the estate is where the decisions will be made.

Who is in charge of the house

The estate trustee winds up the deceased's affairs, pays taxes and debts, collects the assets and distributes the residue to those entitled. The house is usually one of the assets, so the trustee generally decides what happens to it, within the will and the law.

If there is no will, the spouse or common-law partner usually has first right to apply to administer the estate. If there is none, a close adult relative such as a child, parent, grandchild, sibling, nephew or niece can apply, and the court may appoint the relative it considers most appropriate. If no eligible person can act, the Office of the Public Guardian and Trustee may apply, including where the deceased owned Ontario real estate.

Two points often surprise families. A common-law spouse does not inherit under the Succession Law Reform Act on an intestacy. And a legally married spouse with children takes everything only if the net value is not more than the preferential share, which is $350,000 for deaths on or after March 1, 2021. Above that, the spouse takes the preferential share first, then one-half of the residue if there is one child or one-third if there are two or more.

How long can you stay?

There is no fixed move-out date that applies to every adult child. Whether you may remain depends on the will, who owns the home, whether you pay anything toward it, and what the estate trustee needs to do to administer the estate. A lawyer can confirm where you stand once they know those facts.

One timeline that does exist applies to co-owners. Under the Partition Act, co-owners, whether joint tenants or tenants in common, can be compelled to partition or sell the property. Where the land passed by will or intestacy, no proceeding may start until one year after the death of the person in whom the land was vested.

That one-year wait is not a promise that you can stay for a year in every situation. It only limits when a partition proceeding can begin between co-owners.

If a co-owner wants the house sold

If you and your siblings inherit the home together and one of you wants out, the law is not especially sympathetic to the owner who wants to stay. The Court of Appeal has said joint tenants have a prima facie right to force a sale under s. 2 of the Partition Act, and the person resisting the sale must show the property should not be sold.

A court may refuse a partition sale only where it is satisfied that the party seeking the sale is acting in a malicious, vexatious or oppressive fashion. In one case, the argument that the resisting owner's age and illness justified refusing a sale was rejected. The order let that owner buy out the other co-owner first, with the sale to proceed if she was unable or unwilling to buy.

• Being the one who lives in the house does not by itself stop a sale.
• A buyout of the other owners can be a practical way to keep the home.
• Each case turns on its own facts, so get advice before assuming either outcome.

When the house has to be sold or taxed

If the estate trustee must sell Ontario real property, a certificate should be obtained before anyone signs an Agreement of Purchase and Sale. Estates valued at up to $150,000 can use a Small Estate Certificate, while larger estates use a Certificate of Appointment of Estate Trustee.

For certificates applied for on or after January 1, 2020, Estate Administration Tax is $0 per $1,000 on the first $50,000 and $15 per $1,000 on the rest. The estate pays it, and Ontario real estate counts at appraised date-of-death value minus encumbrances such as mortgages.

There can also be income tax. On death, the deceased is treated as having sold their property just before death, and any gain is reported on Schedule 3 of the final return. A home that qualifies as a principal residence must still be designated on the final return using Schedule 3 and Form T1255. Whether a gain arises on your parent's home depends on the facts, so ask an accountant or lawyer.

What to do next

• Find out how title to the home was held, by getting a copy of the deed or a property search.
• Ask who the estate trustee is, or who is applying to become one.
• Keep records of any money you paid toward the home, such as taxes, repairs or utilities, and of any caregiving.
• Do not change the locks, move belongings out or sign anything about a sale before getting advice.
• Speak with an Ontario estates lawyer early, especially if siblings disagree or someone mentions selling.

Frequently asked questions