A Co-Owner Died Without a Will: Who Gets the Share of the House in Ontario?

Someone who owned a house with you, or a relative who owned part of one, has died without a will. Now you want to know who ends up with that share and what has to happen before the house can be sold or kept.

In Ontario, no will does not mean nobody decides. The first question is how title was held, and the second is who is entitled under the intestacy rules.

First, how was title held?

A joint tenant's interest generally passes to the surviving joint tenant. A survivorship application under s. 123 of the Land Titles Act puts title in the survivor's name, on Forms 42 and 43 of Regulation 690 or by solicitor's statements. Form references and registration practice change over time, so confirm current Land Titles practice, including electronic registration, with a lawyer. The statements say the applicant held as a joint tenant, is entitled by right of survivorship, and give the date of death. For deaths on or after March 1, 1986, a Family Law Act statement is also required.

There is an important exception. If a spouse dies owning an interest in a matrimonial home as a joint tenant with a third person and not with the other spouse, the joint tenancy is deemed severed immediately before death, and that share goes to the estate instead of passing by survivorship.

If the share was held alone or as tenants in common, it does not pass to the co-owner. It forms part of the deceased's estate, and the rules below apply.

Who takes charge of the share

With no will, who acts as estate trustee and what steps are needed to give them authority depends on the estate, so it is worth confirming with a lawyer. Only an estate trustee has legal authority to manage or distribute an estate, including selling the home. The deceased's property vests in the personal representative, who holds it as trustee.

When the share is in the deceased's name alone, the estate trustee registers a transmission application under s. 124 of the Land Titles Act, stating whether the trustee was appointed with a will or without one. Current Land Titles practice, including electronic registration, should be confirmed with a lawyer.

Where there is no will, no distribution may be made until one year after the death, subject to s. 53 of the Trustee Act.

Who is entitled to the share

How the rest passes among children and other relatives depends on who survived, so a lawyer can confirm the shares in your case.

A surviving spouse must elect either to take under Part II of the Succession Law Reform Act on intestacy or to receive the equalization entitlement. The election must be filed in the office of the Estate Registrar for Ontario within six months after the death, and a spouse who does not file in time is deemed to have elected to take under the intestacy unless the court orders otherwise.

Tax, debts and selling the house

For certificate applications made on or after January 1, 2020, there is no Estate Administration Tax on estates valued at $50,000 or less; above that, the tax is $15 for every $1,000 of value. Ontario real estate is valued less encumbrances such as a mortgage. Jointly owned assets that pass automatically to the survivor are left out.

If the share goes to the spouse or common-law partner, the capital gain is deferred if it becomes locked in for them no later than 36 months after the date of death. The legal representative can elect out of that rollover on the final return, property by property, and if they do, the cost to the spouse, common-law partner or spousal trust is the fair market value at death. In other cases, the deemed disposition is reported on Schedule 3 of the final return. A legal representative who distributes sale proceeds without a clearance certificate can be personally liable for unpaid tax, up to the value of the assets distributed.

If the co-owners cannot agree, any person interested in land in Ontario may apply for partition, and the court may order a sale instead. Where a minor has an interest, a sale under the Estates Administration Act is not valid without the written approval of the Children's Lawyer or a judge's order.

What to do next

• Get a current title search to see whether you held as joint tenants or tenants in common.
• Find out who survived the deceased, including any spouse and children.
• Before selling, moving into or renting out the share, find out who has authority to act for the estate, since only an estate trustee has legal authority to manage or distribute it.
• Diarize the six-month spousal election deadline if there is a surviving spouse.
• Speak with an Ontario estates lawyer before signing any transfer.

Frequently asked questions