Jointly Owned Home at Death: What the Executor Must Still Do

When someone dies owning a home with another person, families often assume the house is automatically part of the will, or automatically not. The real answer depends on how the title was held and sometimes on why it was put in joint names.

If you are the executor, you may be wondering whether you have any role at all with the house. This article explains the basic idea of survivorship, when a jointly held home can end up in the estate, and the tasks that usually stay with you either way.

How survivorship works in plain words

When two or more people own a home together, how the title is held decides whether it passes by right of survivorship, and real property that does pass that way generally does not need probate. That is why a jointly held home is often described as passing outside the estate.

The contrast is real property that does not pass by right of survivorship. That kind of property generally needs probate, which means a court-issued certificate confirming the executor's authority. Owning as tenants in common, for example, is a different arrangement from joint tenancy, and a lawyer can read the title and tell you which one applies.

Because the answer turns on the wording of the title, the first practical step is always to get a current copy of the ownership record rather than relying on what the family remembers.

When a joint home can still fall into the estate

Sometimes a parent puts an adult child on title for convenience, not as a gift. The Supreme Court of Canada has said the presumption of resulting trust is the general rule for gratuitous transfers, so the person who received the interest must show that a gift was intended.

The question is the transferor's intention at the time of the transfer, and the contrary intention must be shown on a balance of probabilities. For an adult child on a parent's joint bank account, the presumption applies and the survivor must prove the parent meant to give the right of survivorship. That decision dealt with a joint account, so how it applies to a particular home depends on the facts and is worth confirming with a lawyer.

• Who paid for the home, and who lived there?
• Was the second name added for convenience, estate planning or as a gift?
• What did the person who died say or write at the time of the transfer?
• Are there other beneficiaries who might question the arrangement?

What it means for tax and probate

Estate Administration Tax is charged on the value of the estate as of the date of death, and the return reports the total value of real property and personal property owned by the deceased at death. For applications made on or after January 1, 2020, there is no tax on an estate worth $50,000 or less, and above that the tax is $15 for every $1,000 (or part) of value.

If a home does fall into the estate, it adds to that value. If it passed by survivorship, it is generally not part of what needs probate. Capital property is also treated as disposed of just before death at fair market value on the final income tax return, and transfers to a spouse or common-law partner generally occur at cost unless the fair market value choice is made. An accountant can explain how that applies to a home.

What the executor still has to do

Even when the house passes outside the estate, you may still have other tasks, and how far your role extends depends on your situation, so it is worth confirming with a lawyer. An estate trustee winds up the deceased's affairs, collects assets, pays taxes, bills and other debts, and distributes the residue to those entitled. Part of that is working out whether the home is in or out of the estate and keeping good records of how you decided.

If the estate does need a certificate, the initial Estate Information Return must be filed within 180 calendar days after the certificate is issued, even if the value is $0. Keep the records that support the return for four years. If the deceased earned rental income from the property, income from January 1 to the date of death goes on the final return, and rental income earned by the estate afterwards is reported on a T3 return.

If there is a surviving spouse, there may be extra rules. A spouse who wants an equalization payment under the Family Law Act must file the Election of Surviving Spouse within six months of the date of death, and the form affects legal rights, so speaking with a lawyer is recommended. Without an election, the spouse is generally deemed to take under the will or the Succession Law Reform Act unless a court orders otherwise.

Selling or transferring the home

If land is to be transferred to a beneficiary within six months of death, the transfer must be accompanied by an executor's statement that there is no surviving spouse, a court order, or the spouse's written consent. A sale is not barred in that period, but the sale proceeds cannot be distributed within it. That guidance comes from an older land registration bulletin, so a lawyer should confirm current practice before you act.

What to do next

• Get a copy of the current title and confirm how the owners held it.
• Find out when and why the second owner was added, and gather any documents from that time.
• Value the property as of the date of death and keep the support.
• Note the six-month date for any spousal election and avoid distributing sooner without consent or authority.
• Speak with a lawyer if family members dispute who really owns the home or if you are unsure whether probate is needed.

Frequently asked questions