- This article covers the Ontario rules for land and accounts, so how another province treats joint ownership is worth confirming separately with a lawyer.
- In Ontario, survivorship overrides the will for property truly held as joint tenants.
- Federal income tax treats a deceased person as having sold capital property just before death, even if it passes by survivorship.
People searching for right of survivorship in Canada often want one national answer. Whether one answer fits every property you own depends on your situation, and the Ontario rules below are a starting point. This article explains the Ontario rules and the federal tax treatment that applies to Ontario residents.
If you own property or accounts in another province, do not assume these rules carry over. A local lawyer can confirm how that province treats joint ownership.
What right of survivorship means
Right of survivorship means that when one joint owner dies, the survivor takes the deceased's interest automatically. In Ontario, property that passes by survivorship goes straight to the surviving owner and not into the estate, whether or not there is a will. A deceased joint tenant's interest goes to the surviving joint tenants, not to the will's beneficiaries.
Ontario land: joint tenants and tenants in common
Being on title together does not guarantee survivorship. Land conveyed to two or more people is held as tenants in common unless the document shows on its face that they take as joint tenants. The presumption does not apply to land granted to executors or trustees.
Spouses are also caught, and for this rule spouse includes two people living together in a conjugal relationship outside marriage, so they hold as joint tenants only if the deed says so. People who acquire land by length of possession hold as tenants in common.
A person may convey property to themselves jointly with another person, which is how an owner can add a child or partner to title. Any joint tenant or tenant in common may be compelled to make or suffer partition or sale of the land. When the survivor takes over, the land registry step is a survivorship application under the Land Titles Act, which is not a probate application.
Joint bank accounts
Many joint accounts include the right of survivorship, and the surviving holder becomes the account owner. Any named holder can withdraw at any time, and creditors could make claims if one holder goes bankrupt. When opening or converting an account, ask the institution what happens if one holder dies.
Between spouses, money on deposit in both names is deemed held as joint tenants. For other joint accounts, an adult child added to a parent's account without payment is presumed to hold it in trust for the parent and, on death, for the estate. The presumption of advancement is confined to minor children, though an adult child's financial dependency can be strong evidence against the resulting trust.
- Courts may look at the wording of bank documents, who controlled and used the funds, any power of attorney, and the tax treatment of the account.
- Survivorship rights vest when the account is opened, so the gift of the survivor's interest is made during life.
- Heirs may challenge the survivor, who may need to show the deceased intended the funds as a gift.
Where survivorship does not simply win
| Situation | What happens |
|---|---|
| Matrimonial home joint with a third person | The joint tenancy is deemed severed immediately before death and the share goes into the estate |
| Dependant support claim | Joint accounts and jointly held property can be deemed part of the net estate |
| Joint deposit | Only the portion that belonged to the deceased is counted, and the claimant must prove it |
| Owners die at the same time | Joint tenants are deemed to hold as tenants in common unless a contrary intention appears, and each share passes through that owner's estate |
| Married spouse who elects equalization | Property received by survivorship is credited against the entitlement unless a written instrument says it is an extra benefit |
Federal tax on death and what to do next
Under the Income Tax Act, a deceased person is considered to have sold all their capital property just before death, which may produce a capital gain on their final return, even if the property passes by survivorship. Property transferred to a surviving spouse or common-law partner resident in Canada can roll over without immediate gain if it is locked in for them within 36 months of death, and some or all of the gain on a principal residence may be exempt.
Adding a child to title during life is also a tax question. A gift of capital property is treated as a sale at fair market value when given, and the automatic rollover applies to a spouse or common-law partner, not to children, except for qualifying farm or fishing property.
- Check how each property is held and whether the deed says joint tenants
- Ask each bank what happens on the death of a joint holder
- Record why a joint account or title was set up
- Ask an accountant about capital gains before adding a child to title
- Speak with a lawyer if property is located in more than one province
Frequently asked questions
Is right of survivorship the same in every province?
This article explains only the Ontario rules. How another province treats joint land and accounts depends on that province's own law and your situation, so it is worth confirming with a lawyer. In Ontario, property that passes by survivorship goes straight to the surviving owner and not into the estate.
Does survivorship override a will in Ontario?
Yes, for property truly held with a right of survivorship. That property goes to the surviving owner and not into the estate, and the will does not control it.
Does a child on my parent's bank account automatically keep the money?
Not necessarily. An adult child added to a parent's account without payment is presumed to hold it in trust for the parent and, on death, for the estate. The child may need to show the parent intended a gift, and courts look at the evidence of intention.
Is there tax when joint property passes to the survivor?
The deemed sale on death can produce a capital gain on the deceased's final return, even if property passes by survivorship. A surviving spouse or common-law partner resident in Canada may get a rollover if the property is locked in for them within 36 months of death.
Sources
- Estates Administration Act, R.S.O. 1990, c. E.22, s. 2(1) (e-Laws) — Ontario e-Laws
- Conveyancing and Law of Property Act, R.S.O. 1990, c. C.34, s. 13(1) (e-Laws) — Ontario e-Laws
- Partition Act, R.S.O. 1990, c. P.4, ss. 2-3 (e-Laws) — Ontario e-Laws
- Family Law Act, R.S.O. 1990, c. F.3, s. 26(1) (e-Laws) — Ontario e-Laws
- Succession Law Reform Act, R.S.O. 1990, c. S.26, s. 72(1)(c)-(d) (e-Laws) — Ontario e-Laws
- Land Titles Act, R.S.O. 1990, c. L.5, s. 123 (e-Laws) — Ontario e-Laws
- Pecore v. Pecore, 2007 SCC 17 (CanLII) — canlii.org
- Canada.ca (ESDC), Powers of attorney and joint bank accounts — canada.ca
Links go to official government, court and regulator pages. The law changes — confirm you are reading the current version.
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