Joint Tenants or Tenants in Common? Checking Title After a Death in Ontario

After a death, one of the first questions about a house or other land is simple: does it belong to the estate, or does it go straight to a surviving co-owner? The answer decides who deals with it, whether a will matters, and whether probate may be needed.

The answer turns on how the deceased held title. This article explains how to find out, what each result means, and the situations where the usual answer changes. Every family's facts differ, so a lawyer can confirm how these rules apply to yours.

Why the type of ownership matters

Property passes to the estate trustee only if no one else has a right to take it by survivorship. A deceased joint tenant's interest goes to the surviving joint tenant or tenants, not to the beneficiaries named in a will.

A tenant in common is different. A tenant in common's share does not pass by survivorship, so it forms part of the estate.

Being on title together does not settle the question. You need to see the document that created the ownership.

What the law presumes when land is in two or more names

Land granted or conveyed to two or more people after July 1, 1834 is held as tenants in common, unless the document shows on its face that they take as joint tenants. So joint tenancy generally has to be stated.

• Executors or trustees: the tenancy-in-common presumption does not apply to land granted to them.
• Spouses and partners: the presumption also applies where one co-owner is the other's spouse, and for this rule spouse includes a Family Law Act spouse and a conjugal partner outside marriage. They hold as joint tenants only if the deed says so.
• Owners by possession: people who acquire land by length of possession hold as tenants in common.

Co-owners can also choose joint ownership. An owner may convey property to themselves jointly with another person, which is how a child or partner is often added to title.

How to check the parcel register

Ontario land records, including the parcel register, are searched through OnLand. Anyone can self-search for a fee or order certified copies, and ServiceOntario cannot search or explain the records for you. The listed fee for a parcel register copy is $37.10 including HST, plus $2.56 for each additional page, in a schedule effective November 2, 2026. Confirm the current fee before you search.

Read how the owners are described and look at the transfer or deed that created the ownership. If the wording is unclear, ask a lawyer to read it, because the presumptions above depend on the document.

What each answer means

A survivorship application is a land registry step, not a probate application. It can use Forms 42 and 43 of Regulation 690 or statements that the applicant held as joint tenant with the deceased, is entitled by survivorship, and the date of death. Where no death declaration is recorded, proof of death is required. For deaths on or after March 1, 1986, a Family Law Act statement is also needed, and only a solicitor may make and sign it.

If the share goes to the estate, probate may follow. Ontario lists real property that does not pass by survivorship as a reason to apply. For applications on or after January 1, 2020, there is no estate administration tax on an estate worth $50,000 or less, and above $50,000 the tax is $15 for every $1,000 (or part) of the estate's value. Jointly owned property that passes automatically to the other owner is not counted, but property held in another person's name that belongs to the deceased, such as a joint asset the survivor holds on resulting trust for the estate, is included. If the estate is not over $50,000, an estate trustee may state in a transmission application that no certificate was sought, and a Form 54 indemnity covenant is then required.

Situations that change the usual answer

• Matrimonial home held with someone other than the spouse: if a spouse dies owning a matrimonial home as joint tenant with a third person, such as a child, and not with the other spouse, the joint tenancy is deemed severed immediately before death. The share goes into the estate.
• Resulting trust: an adult child added to a parent's asset without payment is presumed to hold it in trust for the parent and, on death, for the estate. The presumption of advancement is confined to minor children. Courts may look at the bank documents, who controlled and used the funds, and tax treatment.
• Support claims: for a dependant's support claim, property held by the deceased and another as joint tenants is deemed part of the net estate.
• Severed earlier: a joint tenancy can be ended during life by deed under the statutory routes, so check for later transfers.

Tax is a separate question. A deceased person is treated as having sold their capital property just before death, even if it passes by survivorship. Property transferred to a surviving spouse or common-law partner who is resident in Canada can roll over without immediate gain, but only if it is locked in for them within 36 months of death.

What to do next

• Gather the death certificate and any known deeds or mortgage papers.
• Search the parcel register through OnLand and confirm the current fee.
• Identify how each owner is described and whether any later transfer changed it.
• Ask whether the property was a matrimonial home or whether a child was added to title without paying.
• Hold off on distributing anything until a lawyer has confirmed whether the asset is in the estate.

Frequently asked questions