Does a House in Joint Tenancy Avoid Probate in Alberta?

A parent or spouse has died and the house was in both names. You may have heard that joint ownership means the home skips probate, and you want to know whether that is true for your situation and what you have to do next.

The answer turns on how the deceased held title. This article explains the two main outcomes in Alberta, the paperwork Land Titles asks for, and the points where a jointly owned home can still be affected by debts or disputes.

This article covers the law of Alberta.

How the way title is held decides the answer

Land in Alberta can be owned by two or more people in different ways. The two that matter here are joint tenancy and tenancy in common. It is worth confirming which one applies before you act, rather than relying on memory or what the family assumed, and a lawyer can help you check this.

What the survivor files when title was joint

Where the home was held in joint tenancy, Alberta Land Titles lets the surviving owner remove the deceased by filing a Statutory Declaration regarding Proof of Death together with an original or notarized death certificate. Accepted certificates include those from Vital Statistics, the Medical Examiner, a funeral director or a cremation certificate.

Notice what is not on that list: a grant of probate. For a true joint tenancy the survivor does not need one to deal with title. That is the sense in which the house avoids probate.

When the house does go through the estate

If the deceased owned as a tenant in common or as sole owner, the land passes through the estate. Land Titles then requires an Application for transmission to personal representative, with an original filed copy of the Grant of Probate or Letters of Administration from the Surrogate Court of Alberta. A notarized copy is not acceptable.

If the grant was issued outside Alberta, it must be re-sealed by the Surrogate Court of Alberta before Land Titles will accept it.

Once someone is appointed, they carry the duties of a trustee. They must distribute the estate as soon as practicable and act with the care, diligence and skill of a person of ordinary prudence.

Debts, a mortgage and other risks

Avoiding probate is not the same as avoiding every problem. The estate is the first source of payment for the deceased's debts, because a personal representative must satisfy the debts and obligations of the estate. Whether a particular debt can reach a jointly owned home is a question of law that depends on the facts, and a lawyer can confirm it for your situation.

A mortgage is a separate issue. Under Alberta's Law of Property Act, a mortgagee's right is generally restricted to the land the mortgage relates to, and no action lies on the covenant for payment. There is an exception: this does not apply to mortgages given by a corporation, though it does apply to an action against an individual. Separately, a person who takes over a mortgaged home is generally protected from personal suit on the covenant, but certain National Housing Act and high-ratio mortgages are excluded from that protection, so insured mortgages can carry personal liability. That protection for someone taking over a mortgaged home applies only to residential land and farm land, and in the residential case it does not apply if the individual or a family member has ever used the land as a bona fide residence. The individual bears the burden of proof. Because these rules have several exceptions, it is worth confirming with a lawyer how they apply to your home. A reverse mortgage is different again, because the death of the last borrower triggers repayment and the window can be short.

• A challenge can arise if other family members question why the house was put in joint names. Whether such a challenge could succeed depends on the facts and is worth discussing with a lawyer.
• A creditor of the deceased may look to the estate first, but you should not assume joint property is out of reach without advice.
• A mortgage lender may still have rights against the property itself.

What to do next

• Order a current title search so you know whether title is joint tenancy, tenancy in common or sole ownership.
• Get original or notarized death certificates.
• If title was joint, prepare the Statutory Declaration regarding Proof of Death for Land Titles.
• If title was not joint, find out who is entitled to apply for the grant and whether there is a will.
• List any mortgage, line of credit or other debt secured on the home, and check whether it is a reverse mortgage.
• Speak with a lawyer before selling, refinancing or transferring the house if there are debts or a family disagreement.

Frequently asked questions