Both Joint Owners Die Together: Who Inherits in Ontario?

When two people who own a home or account together die in the same accident, their families face a puzzle. Survivorship assumes one owner outlives the other, so what happens when no one clearly does?

This article explains the general framework in Ontario and what a family should do first. It is general information, not advice. The rules on when the order of deaths cannot be established are not covered here, so a lawyer should confirm how they apply to your situation.

Why the order of deaths matters

In Ontario, if you own property as a joint tenant, it automatically passes to the surviving owner when you die. On a joint tenant's death the interest passes to the surviving co-owners, while on a tenant in common's death it passes to the deceased's estate. Survivorship applies only to interests held in a joint tenancy.

With two owners, survivorship needs a survivor. How the order of deaths affects who ends up with the property depends on the facts, so it is worth confirming with a lawyer. If it cannot be shown who died first, the usual reasoning is harder to apply. A lawyer can confirm how this applies to your situation.

Timing can matter in other ways too. In one Court of Appeal decision, the Court found a triable issue about whether a wife's estate had an interest in insurance proceeds, including contents, separate from the house, if she died after the home was destroyed. The point is that exact timing can affect who has a claim.

What passes by survivorship and what goes to the estate

The Province lists property jointly owned with another person, and designated-beneficiary assets such as a joint bank account, as examples of assets whose distribution depends on how they are owned. Each asset needs to be reviewed on its own, because title, beneficiary designations and the timing of each death can differ.

Probate, tax and who steps forward

Probate is normally required if the deceased owned real property or assets held by a financial institution. It is also triggered when an institution demands proof of authority, when real property must be sold, or when beneficiaries cannot consent. Real property that does not pass by right of survivorship is a reason to apply.

Estates valued up to $150,000 can apply for a Small Estate Certificate, and larger estates apply for a Certificate of Appointment of Estate Trustee. Without a will, the spouse or common-law partner generally has first right to apply, then a close adult relative such as a child, parent, grandchild, sibling, nephew or niece. If both spouses have died, the next category of relatives generally steps forward.

For estate certificates applied for on or after January 1, 2020, Estate Administration Tax is $15 for every $1,000 (or part thereof) of estate value over $50,000. Estates of $50,000 or less pay no tax but must still file the return. Joint assets that automatically become assets of the other owner are excluded from the estate's value. The tax is due the day the estate certificate is issued, and an Estate Information Return must be filed within 180 calendar days after issue.

On the tax side, each person is considered to have disposed of property immediately before death at fair market value, which may produce a gain or loss on the final return. How this applies when both owners die together depends on your situation, so it is worth confirming with an accountant or lawyer, who can explain what it means for each final return.

A worked picture, without the answer

Suppose a couple owned their home as joint tenants and both died in one accident. Several questions follow: Is there evidence of who died first? Did either person have a will naming an estate trustee? Was there a mortgage? Who are the next relatives entitled to apply? Each answer changes the path.

• Death certificates and any medical or police records can bear on timing.
• Whether the home was held as joint tenants or tenants in common matters, because survivorship differs between the two.
• A will, if one exists, names who can act and who benefits, though it does not override survivorship on a true joint tenancy.
• For Estate Administration Tax, insurance and registered plans (RRSP, RRIF, TFSA, RPP) with a beneficiary designation are excluded from the estate's value.

What to do next

• Secure the home and notify the insurer and mortgage lender.
• Collect death certificates and any records that show the time of each death.
• Order a current copy of title for any real property.
• List accounts, insurance and registered plans, and note which have named beneficiaries.
• Look for wills for both people and for anyone named as estate trustee.
• See a lawyer early, since the order-of-death rules and probate steps can change who inherits.

Frequently asked questions