- Joint owners normally pass property to the survivor, but when nobody can show who survived, each owner is deemed to have held a share as a tenant in common.
- Each share then passes through that owner's own will or intestacy, so the estate trustee for each person becomes involved.
- Life insurance and land registry steps follow their own rules, so the family should not assume everything works the same way.
Losing two people in the same accident or the same week is hard enough without a legal puzzle on top. If they owned a home or a bank account together, you may be wondering who gets it: the family of one owner, the family of the other, or both.
The answer depends on whether anyone survived, even briefly, and on how the property was held. This article explains the general Ontario rules in plain language so you know what questions to ask and who to speak to.
How survivorship normally works
When one joint owner dies, property with a right of survivorship goes straight to the surviving owner. It does not go into the estate, whether or not there is a will. A deceased joint tenant's interest goes to the surviving joint tenant, not to the will's beneficiaries.
Having two names on title does not always mean survivorship. Land given to two or more people is presumed to be held as tenants in common unless the document shows on its face that they take as joint tenants. The same presumption applies if one owner is the other's spouse, and for this rule spouse includes a common-law partner. So spouses hold as joint tenants only if the deed says so.
The rule when deaths are simultaneous
If two or more people die at the same time, or in circumstances that make it uncertain who survived, each person's property is dealt with as if that person had survived the others.
For joint owners there is a specific rule. Unless a contrary intention appears, joint tenants of property, and holders of a joint account, who all die at the same time or where it is uncertain who survived are each deemed to have held as tenants in common. Each owner's share then passes through that person's own estate, under a will or on intestacy.
In practice, this means a house owned by two joint tenants who died together is split into two shares. One share is dealt with under one owner's will (or the intestacy rules), and the other under the second owner's.
What changes if one person clearly outlived the other
The simultaneous-death rule is for cases of real uncertainty. If the evidence shows one owner survived the other, even briefly, the ordinary survivorship rules are the starting point, subject to the exceptions for the particular property. Where survivorship applies, the property goes straight to the surviving owner and not into the estate, whether or not there is a will.
Once the last joint tenant dies, there is no one left to take by survivorship. For land, it goes to that person's estate trustee under the transmission rules. Because the order of death can change who inherits, families sometimes need medical or other evidence about timing. A lawyer can tell you whether the facts fit the uncertain-survivor rule.
Different assets, different rules
| Asset | What to know |
|---|---|
| Land held as joint tenants | If all owners died together or order is uncertain, deemed tenants in common |
| Land held as tenants in common | No survivorship; each share goes through the owner's estate |
| Joint bank account | Treated like joint tenancy for simultaneous deaths, so each share goes to its own estate |
| Life insurance | Proceeds are paid under sections 215 and 319 of the Insurance Act, and only then does Part IV of the Succession Law Reform Act govern disposition |
Part IV of the Succession Law Reform Act applies to deaths on or after March 31, 1978. Also keep in mind that retirement plans and insurance with a named beneficiary generally sit outside the estate for estate administration tax.
What to do next
- Gather death certificates, the wills, the deed or parcel register, and recent bank statements for both people.
- Find out how title was held. Land registry records, including the parcel register, can be searched through OnLand.
- Identify who may be named estate trustee in each will. Each person's estate is dealt with separately.
- Ask whether each estate needs a certificate of appointment. A house held in true joint tenancy by a surviving owner may not need one, but real property that does not pass by survivorship is a reason to apply.
- Plan for estate administration tax, which applies above $50,000 at $15 for every $1,000 (or part) of estate value.
- Ask an accountant about the final tax returns. A deceased person is considered to have sold their capital property just before death, even if it passes by survivorship.
Because the two estates may have different beneficiaries, there can be a conflict of interest between families. A lawyer can help you sort out the timing evidence, the title, and who acts for each estate.
Frequently asked questions
Does a joint owner's family inherit if both owners die together?
Generally, unless a contrary intention appears, each owner is deemed to have held a share as a tenant in common, and each share goes through that owner's own estate. So each person's will or intestacy decides who receives that share. Whether a contrary intention applies to your family depends on the facts, so it is worth confirming with a lawyer.
What if it is unclear who died first?
The law treats uncertainty the same way as simultaneous deaths. Each person's property is disposed of as if that person survived the others, and joint owners are deemed tenants in common.
Is life insurance handled the same way?
Not exactly. Insurance proceeds are paid under sections 215 and 319 of the Insurance Act first, and only after that does Part IV of the Succession Law Reform Act govern what happens.
Do we need probate for the shares?
It depends on the assets. Real property that does not pass by survivorship is a reason to apply for a certificate, and a Small Estate Certificate can be sought if an estate is valued at up to $150,000. A lawyer can confirm what applies to each estate.
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
- Succession Law Reform Act, R.S.O. 1990, c. S.26, s. 55(1) (e-Laws) — Ontario e-Laws
- Land Titles Act, R.S.O. 1990, c. L.5, s. 120 (e-Laws) — Ontario e-Laws
- Ontario.ca, Search land property records — ontario.ca
- Ontario.ca, Apply for probate of an estate — ontario.ca
- Ontario.ca, Estate Administration Tax — ontario.ca
- Canada Revenue Agency, Taxable capital gains – someone who died — 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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