Do Joint Bank Accounts Go Through Probate in Ontario?

You have been named on a joint bank account with someone who has died, and you need to know whether the money is yours or belongs to the estate. The answer is not always the same as the name on the account.

This article explains the general rules in Ontario, including the special situation of an older parent and an adult child. Because the outcome can depend on the evidence, it is worth getting advice before you move money.

The usual rule: survivorship

Assets held jointly that automatically become the property of the other owner or owners on death are not included in the estate value for the Estate Administration Tax. That is what people mean by a right of survivorship.

In that case the account passes to you directly and is not counted when the tax is calculated. The key question is whether the account really was meant to pass that way.

When a joint account may fall into the estate

When a parent puts money in a joint account with an adult child without payment (a gratuitous transfer), the law presumes the child holds the money in trust for the parent's estate. This is called a resulting trust.

The presumption can be rebutted. It takes evidence, on a balance of probabilities, that the parent intended to give the child the right of survivorship.

For gratuitous transfers from a parent to a minor child, the starting point is different. The presumption of advancement applies, meaning the transfer is presumed to be a gift.

What kind of evidence can matter

The law looks at what the account holder intended, so the surrounding facts matter. These are the kinds of things people commonly gather.

• The bank's account-opening documents and any survivorship wording on them.
• Who deposited the money and who used it day to day.
• Notes, emails or statements showing what the parent said about the account.
• Whether the account was opened for convenience, such as paying bills.

No single item decides the question. If beneficiaries of the will disagree with you about the account, a lawyer can help you assess how a court is likely to view the evidence.

Tax, probate and the trustee's paperwork

If the account is held in trust for the estate, it forms part of the estate value. The tax covers the value of assets the deceased owned at death, including property held in another person's name.

An estate normally must be probated if the deceased owned assets held by a financial institution in their own name. Banks set their own internal practices for releasing funds, so what a particular bank asks for can vary.

The estate representative's Estate Information Return lists each asset and its value on the date of death. If the representative learns the return was incorrect or incomplete, an amended return is required within 60 days of becoming aware. The Ministry of Finance may reassess at any time where there was misrepresentation or fraud.

What to do next

• Get the account agreement and statements from the bank, and a certified death certificate.
• Do not withdraw or spend the money until you know how it is classified.
• Write down what you know about why the account was opened and how it was used.
• Tell the estate trustee about the account, so it can be reported correctly.
• Speak with a lawyer if the account is large, if the owner was a parent, or if anyone disputes it.

Frequently asked questions