Joint Ownership of a House After Death in Ontario: What Happens

When a co-owner of a house dies, the first worry is usually simple: whose house is it now? The answer depends less on what people assumed and more on how the names appear on title.

This article explains the two common ways of holding a house with someone else, what happens to the deceased's share in each case, and the practical steps that tend to follow. Every family's facts differ, so use this as a map and not a substitute for advice on your own situation.

Start with how title is held

Each co-owner is listed on title as either a joint tenant or a tenant in common. The way title is registered decides whether the survivor takes the deceased's share.

Ontario's co-ownership guidance says a joint tenant's death passes the share to the surviving co-owners, while a tenant in common's share does not go to the other owners and becomes part of that person's estate.

If you are not sure how your house is held, check the deed or the parcel register. Do not rely on memory or on what a family member said years ago.

If you were joint tenants

When the deceased held the house as a joint tenant, the surviving owner is generally entitled to the property by right of survivorship. The land registry still needs to be updated so the public record matches reality.

In a Land Titles property, the surviving joint owner makes a survivorship application to have the deceased's name deleted from the parcel register. The official form is the Survivorship Application (Under Section 123 of the Land Titles Act), with a supporting affidavit.

In that application the survivor states that they held the property as joint tenant with the deceased, that by right of survivorship they are entitled to be owner, and the date of death. Land Registry guidance also requires Family Law Act statements, including whether the deceased and the survivor were spouses of each other when the deceased died, or whether the property was not a matrimonial home.

You will also need proof of death. A death certificate is accepted, and a statement issued by a funeral home has also been accepted for survivorship or transmission applications.

Older properties converted from the old Registry system can add a wrinkle. If the surviving joint tenant never deposited a declaration of death, a survivorship application with appropriate proof of death will be required. A lawyer can tell you which route applies to your property.

If you were tenants in common

Here the deceased's share does not go to the other owner. It becomes part of the estate, so who ultimately receives it depends on the deceased's situation and is worth confirming with a lawyer.

An estate trustee is the only person with legal authority to manage or distribute an estate. Ontario says an estate normally must be probated if the deceased owned real property, including where the estate has real property that does not pass to another person by right of survivorship.

If the house is later transferred by the estate trustee, the transfer must include a statement that the transferor is entitled to transfer the land, and whether title is subject to spousal rights under the Family Law Act and whether the consent of all required parties was obtained. The certificate of appointment of the applicant as estate trustee is also listed as a required item in an estate registration.

• The surviving co-owner keeps their own share but does not automatically get the deceased's.
• The estate trustee may need to sell, transfer or hold the deceased's share, depending on the will.
• Whether the survivor can acquire the estate's share depends on the circumstances, so it is worth confirming with a lawyer.

Tax and costs to keep in mind

For Estate Administration Tax, Ontario excludes jointly owned assets that automatically become the other owner's on death, so real estate passing by survivorship is not counted in the estate value. For certificates applied for on or after January 1, 2020, the tax is $15 for every $1,000 of estate value over $50,000, and nothing is owed if the estate is $50,000 or less.

Where the house is part of the estate, it is valued at appraised value on the date of death, less encumbrances such as a mortgage or lien. Other debts such as credit cards and lines of credit cannot be deducted.

Income tax is a separate question. A deceased taxpayer is treated as having sold each capital property immediately before death at fair market value. Property can pass to a spouse, common-law partner or qualifying spousal trust at the deceased's adjusted cost base if it vests in that person within 36 months after death, unless the legal representative elects out. Even if the whole gain is exempt as a principal residence, the legal representative must still designate it on the final return using Schedule 3 and Form T1255. An accountant can confirm how this applies to a jointly held home.

What to do next

• Get a copy of the current parcel register or deed and confirm whether the owners were joint tenants or tenants in common.
• Order death certificates, or ask the funeral home about its statement of death.
• Find the will and learn who the estate trustee is, especially if the deceased was a tenant in common.
• Check for a mortgage, lien or other charge registered against the property.
• Note the date of death, since tax filing deadlines run from it.
• Speak with a lawyer before signing a survivorship application, transferring the house or selling it, and with an accountant about the final return.

Frequently asked questions