Joint Account With Right of Survivorship: Who Gets the Money?

When one person who held a joint bank account dies, the survivor often wants to know two things: can I keep the money, and could the estate or other family members claim it? The answer depends on how the account is held and on what the account holder intended when it was opened or funded.

This article explains the general approach in Ontario and the kind of proof that tends to matter. It is not advice on your situation, and disputes over accounts are worth taking to a lawyer early.

Does the survivor automatically keep the account?

Ontario says the assets in an estate are distributed depending on how they are owned. It lists money and property jointly owned with another person as examples. Where an asset is jointly owned and automatically becomes the other owner's asset, it is excluded from the estate value used to calculate Estate Administration Tax.

The survivorship rule is clearest for land, where a joint tenant's interest automatically passes to the surviving owner. For bank accounts, the answer can depend on the details of how the account was set up and why. That is where disputes can arise, and a lawyer can confirm how the rules apply to your account.

Why an estate might claim the money

Sometimes money is placed in joint names for convenience, such as so a family member can pay bills. If the owner never meant the other person to keep what was left, the estate or the other beneficiaries may argue the money belongs to the estate.

Ontario's courts approach this by looking at the transferor's actual intention. On a gratuitous transfer, meaning one made without payment, the transferee has the onus to show a gift was intended. The judge starts with the applicable presumption and decides the transferor's actual intention on a balance of probabilities.

The Court of Appeal has also held that a trial judge erred by putting the onus on the transferee when property was jointly registered, instead of starting with the presumption of resulting trust. A resulting trust means, in simple terms, that the property is treated as still belonging to the person who provided it. Which presumption applies in a particular case is a point to confirm with a lawyer.

What proof of intent can matter

• Evidence of what the account holder intended at the time of the transfer, since later evidence must relate to that intention.
• Account opening documents and any forms signed when the name was added, which are practical records to gather.
• Records showing how the account was used, which a lawyer can help you assess.
• Any other evidence of the account holder's intention, bearing in mind that courts must guard against self-serving evidence or evidence reflecting a change in intention.

Courts treat evidence from the surviving owner after the death with care. Evidence of intention must relate to the transferor's intention at the time of the transfer, and courts must guard against evidence that is self-serving or reflects a change in intention.

How the paperwork usually unfolds

Banks often ask for proof of death and, in some cases, proof of authority before they release or change accounts. Ontario notes that an institution demanding proof of authority is one trigger for applying for probate. Whether a particular bank will release a joint account to the survivor without it is a question for the bank.

If a certificate is needed, the tax is due the day the estate certificate is issued, and an Estate Information Return is due within 180 calendar days of issue, even if the estate is worth $0.

What to do next

• Gather the account statements, opening documents and the death certificate.
• Write down who contributed the money and why the account was held jointly while you still remember the details.
• Do not move or spend funds that others may claim until you understand the position.
• Ask the bank what documents it needs to release the account.
• If family members disagree about whether the money belongs to the survivor or the estate, speak to an estate lawyer promptly.
• Ask an accountant about any tax effects on the final return.

Frequently asked questions