Does Joint Property Avoid Probate Fees in British Columbia?

If you have just lost a spouse, parent or other co-owner, you may be told that the house or bank account was held jointly and so does not go through probate. That is often true, but it is not automatic, and the details affect whether probate fees are owed on that asset.

This article explains why joint property can sit outside the probate fee base, and the situations where it does not. Because the answer turns on how the asset was actually held, a lawyer should review anything that is not clear-cut.

This article covers the law of British Columbia.

How the probate fee base works

The probate fee is charged on the value of the estate, which the Probate Fee Act defines as the gross value as deposed to in a Statement of Assets, Liabilities and Distribution. The fee base is limited to property that passes to the personal representative at the date of death.

For that reason, assets that pass directly to someone else at death, for example by right of survivorship or a valid beneficiary designation, are outside the statutory definition. You need to check each asset against the definition, not assume.

Jointly held land

Under the Wills, Estates and Succession Act, land devolves to the personal representative on the owner's death unless there is a right to land by survivorship. Jointly held land with a right of survivorship therefore passes to the survivor rather than to the personal representative. In that case it is generally not part of the fee base.

The exception matters. A joint holding that is only a tenancy in common, with no survivorship, passes to the personal representative. Many couples and families assume they hold as joint owners without checking the title.

Joint bank accounts

The same survivorship idea can apply to a joint account, but the legal rules about who really owns the money are more complicated. If joint owners cannot be shown to have survived each other, or die at the same time, each is deemed to have held the property or joint account as tenants in common, so the deceased's share can pass through the estate.

Whether a joint owner holds the money for their own benefit, or only holds it for the deceased person's estate (for example, where an account was set up for convenience), is a question that can end up before a court. It depends on the facts and is worth discussing with a lawyer.

Catches to watch for

• Title or account wording: survivorship depends on how the asset is actually held, not on how the family describes it.
• Tenancy in common: no survivorship, so the share goes to the personal representative.
• Simultaneous or unclear deaths: joint holdings are deemed to be held as tenants in common.
• Beneficial ownership: the name on the title or account may not settle who is truly entitled to the asset.
• Taxes: property is generally treated as disposed of just before death at fair market value, with a deferral available for transfers to a surviving spouse, common-law partner or qualifying spousal trust. Avoiding the probate fee does not remove tax questions.

Also note that debts are handled separately from the fee. The Act's definition uses gross value and contains no deduction for debts or mortgages.

What to do next

• Get a current title search or account agreement showing exactly how each asset was held.
• List each asset and note whether it passes by survivorship, by designation, or through the estate.
• Record any facts about why an account was made joint, such as convenience or genuine gift.
• Keep in mind that an asset passing outside the estate can still affect taxes and family expectations.
• Speak with a lawyer if there is any doubt, a dispute, or a possible simultaneous death.

When a grant application is made, the assets that do pass through the estate are set out in the sworn statement, and if one is later missed or revised, the personal representative must disclose it and pay any difference in fee.

Frequently asked questions