What Happens to Joint Property When One Owner Dies in Ontario?

If you owned a home together with someone who has died, you are probably wondering whether the home is now yours, and what paperwork is needed. Often the answer is yes, because of the right of survivorship, but there are exceptions.

This article walks through how survivorship works, the exceptions that catch people out, and the steps to update title. Because the application involves legal statements, a lawyer will usually be involved.

How right of survivorship works

When two or more people own land as joint tenants, the share of one who dies passes automatically to the surviving owner or owners instead of through the will. This is the right of survivorship. Owners who hold as tenants in common do not generally have this feature, so how title is held matters.

An estate normally must be probated if the deceased owned real property that does not pass to someone else by right of survivorship. Assets held jointly that automatically become the other owner's on death are excluded from the estate's value for Estate Administration Tax. Whether a particular joint holding really works this way can depend on the facts, especially where a family member was added to title.

Exceptions to be aware of

• Matrimonial home held with a third person: if a spouse dies owning a matrimonial home as a joint tenant with someone other than their spouse, such as an adult child, the joint tenancy is deemed severed immediately before death, so the right of survivorship does not operate.
• Changing how title is held: converting a tenancy in common to a joint tenancy, or the reverse, between the same parties is not a conveyance, so no land transfer tax applies.
• Separate rights of spouses: both spouses have an equal right to possession of a matrimonial home, whoever is on title.

If you are unsure how title was held, check the parcel register. Anyone can search and download current and historical property records through OnLand for a fee.

Updating title after a death

The survivor updates title with a Survivorship Application under Land Titles Act s. 123. It states that the applicant held the property as joint tenant with the deceased and gives the date of death. For deaths on or after March 1, 1986, it must also include a Family Law Act spousal statement.

The required statements can only be made by a solicitor, who must sign them. Documents are registered electronically through Teraview by authorized account holders.

If an attorney under a power of attorney signs for the surviving joint tenant, a covenant to indemnify the Land Titles Assurance Fund is required. Since June 7, 2014, it is not required if a spousal statement and a law statement on the deceased's spousal rights are provided.

When the estate is involved instead

If the deceased also owned a share that does not pass by survivorship, the personal representative deals with it through the estate. The Estate Administration Tax is $15 for every $1,000 (or part) of estate value for estates over $50,000, and estates of $50,000 or less pay none. An Estate Information Return is due within 180 calendar days after the estate certificate is issued.

If the property must be sold, the certificate should be obtained before anyone signs an Agreement of Purchase and Sale. Some small estates can use a simplified court process, available for estates valued at $150,000 or less.

What to do next

• Obtain a death certificate and a copy of the parcel register to confirm how title was held.
• Tell a lawyer whether the home was a matrimonial home, and who else was on title.
• Ask the lawyer to prepare the Survivorship Application with the required statements.
• If there is no clear survivor, or there is a will, ask whether probate is needed.
• Keep records of anything you pay for the property after the death.

Frequently asked questions