- Joint ownership with survivorship passes outside the estate.
- A gratuitous transfer from a parent to an adult child, including into a joint account, is presumed to be held on a resulting trust for the parent's estate unless a gift was intended.
- Joint assets can be treated as part of the estate for a dependant's support claim.
A parent dies and the bank account or the house had two names on it. The survivor assumes it is theirs. Other family members assume it belongs to the estate. Both views can be right, depending on the facts.
This article explains how right of survivorship and resulting trust work together in Ontario, what courts look at, and when a lawyer's help is worth getting.
Right of survivorship in plain words
With joint ownership and survivorship, the survivor generally takes the asset automatically when a co-owner dies. This is why some assets pass outside the estate, by joint ownership with survivorship or to a designated beneficiary.
That does not always end the matter. Probate is usually needed for real property that does not pass by survivorship and for assets held by financial institutions. The real question is often whether the survivor holds the asset for themselves or for the estate.
Resulting trust: when the survivor may not keep it
A gratuitous transfer from a parent to an adult child, including into a joint account, is presumed to be held on a resulting trust for the parent's estate. The presumption can be rebutted by evidence, on a balance of probabilities, that the transferor intended a gift. The evidence looks at the intention at the time of the transfer.
| Situation | Starting point |
|---|---|
| Parent to adult child, including a joint account | Resulting trust for the parent's estate, which can be rebutted by evidence of a gift |
| Parent to minor child | Presumption of advancement, meaning a gift |
Transfers between spouses are treated differently, and the outcome depends on the facts. A lawyer can advise on how the rules apply to a particular couple.
What courts look at on a joint account
Because intention is the central question, courts weigh a range of evidence. It includes the following:
- Later statements of intention by the person who opened or funded the account.
- The wording of the bank documents.
- Who controlled and used the funds.
- Any power of attorney.
- How the account was treated for tax.
No single item decides the case. The wording of the bank documents is one factor among several. Keep statements, signature cards and tax records, because they may become important.
Joint assets and support claims
A dependant can ask the court for support from the estate where the deceased did not make adequate provision. A dependant is a spouse, parent, child or sibling the deceased was supporting. The application must be made within six months after the grant of probate or administration, although the court may allow a late application as to any part of the estate not yet distributed.
For that claim, non-estate assets are treated as part of the estate. These include money in a joint account with another person and property held in joint tenancy. This treatment is for the support claim only, and it does not change who owns the asset for ordinary distribution.
What to do next
- Collect account statements, signature cards and account-opening documents.
- Find out when and why the second name was added.
- Note who deposited money, who withdrew it and what it was used for.
- Avoid withdrawing or moving joint funds until ownership is clear.
- Speak with a lawyer before distributing anything or starting a dispute.
A beneficiary or other person with a financial interest in an estate may move for orders requiring the estate trustee to file a statement of estate assets, give further particulars, or pass accounts. This can help if you suspect assets are being left out.
Frequently asked questions
Does a joint bank account always go to the survivor in Ontario?
Not always. Joint ownership with survivorship passes outside the estate. But where a parent put money into a joint account with an adult child, the account is presumed to be held on a resulting trust for the parent's estate unless there is evidence the parent intended a gift.
Who has to prove what in a joint account dispute?
The presumption of resulting trust applies to a gratuitous transfer from a parent to an adult child. The person claiming a gift can rebut it with evidence, on a balance of probabilities, of the parent's intention at the time of the transfer.
What if the joint owner was a minor child?
For a gratuitous transfer from a parent to a minor child, the starting point is the presumption of advancement, which is a gift, not a resulting trust. The facts of each case still matter.
Can joint assets be counted when someone claims support from the estate?
Yes, for that claim only. A dependant's support claim treats non-estate assets, such as money in a joint account and property held in joint tenancy, as part of the estate.
Sources
- Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (e-Laws) — Ontario e-Laws
- Succession Law Reform Act, R.S.O. 1990, c. S.26 (e-Laws) — Ontario e-Laws
- Sawdon Estate v. Sawdon, 2014 ONCA 101 — ontariocourts.ca
- Ontario.ca – Administering estates — ontario.ca
Links go to official government, court and regulator pages. The law changes — confirm you are reading the current version.
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