Right of Survivorship: Does a Jointly Owned Home Go Through Probate in Ontario?

If you owned a home with your spouse or another person who has died, you may be asking whether the house now belongs to you automatically, or whether you must go through probate first.

The answer turns on how title was held. This article explains joint tenancy and tenants in common, the paperwork a survivor generally needs, and the limited situations where a certificate may be avoided in other ways.

Joint tenancy and tenants in common

When two or more people own a home, they hold it in one of two main ways. Joint tenants have a right of survivorship, which means that when one dies, the others take the property automatically. Tenants in common each own a separate share, and a deceased owner's share does not pass by survivorship.

This matters for probate tax. Assets held jointly that automatically become the property of the other owner or owners on death are not included in the estate value. A tenant in common's share does not pass that way, so it is part of the estate. The way title is recorded in the land records is therefore the first thing to check.

Paperwork for the surviving joint tenant

A surviving joint tenant takes the property by survivorship by registering a survivorship application under Land Titles Act s. 123. The application states that the applicant held the property as a joint tenant with the deceased and gives the date of death, together with a Family Law Act statement for deaths on or after March 1, 1986. No estate certificate is needed.

In practice, you will want the death certificate and a copy of the current title or deed. Because land registration has its own technical requirements, a lawyer usually prepares and registers the documents.

When a certificate is needed for land

If the deceased owned the home in their own name, or as a tenant in common, the estate trustee deals with it. Land registry staff accept a certificate of appointment of estate trustee as proof of the trustee's authority to deal with a deceased owner's land. An estate normally must be probated if the deceased owned real property in their own name.

Land registration practice has a few exceptions to the certificate requirement. Whether a low-value estate can have land transmitted without a certificate depends on current land registry practice, so it is worth confirming with a lawyer. For the first dealing after a property was converted from the Registry system to Land Titles, the land registrar may waive the certificate, but the supporting affidavit must state the estate's value, prove the will was signed properly and is the last will, and confirm that no certificate was applied for. A covenant to indemnify the Land Titles Assurance Fund is always required.

These exceptions come from older land registration guidance, so current practice should be confirmed with a lawyer before relying on them. They are also separate from the Small Estate Certificate, which is a court process for estates valued at $150,000 or less.

How the home affects the tax if probate is needed

When the home is part of the estate, Ontario real estate counts in the estate value, less mortgages or liens on it. Only mortgages, liens and similar encumbrances on real property can be deducted, and only from that property's value. Real estate is valued at its appraised value on the date of death, even if it later sells for more or less.

There is no tax on the first $50,000 of the estate's value. Above that, the tax is $15 for every $1,000 or part of $1,000. Real estate located outside Ontario is not included in the estate value for Ontario Estate Administration Tax.

What to do next

• Get a copy of the current title or deed to see whether it says joint tenants or tenants in common.
• Obtain the death certificate.
• Check for a mortgage or other registered debt on the property.
• If you are the surviving joint tenant, ask a lawyer to prepare the survivorship application.
• If the home was in the deceased's name or held in common, speak with the estate trustee or a lawyer about the estate certificate.
• Before you sell or transfer the home, confirm with a lawyer which steps apply to your situation.

If family members disagree about who owns the home, or the title is unclear, get legal advice before taking any steps.

Frequently asked questions