Jointly Owned House in Alberta: What Happens When One Owner Dies

When a co-owner of a house dies, the first question is usually whether the survivor now owns the whole property or whether the deceased's share goes into the estate. The answer turns on how the two of you hold title, not on how you lived or what you assumed.

This article explains the two main ways of holding title in Alberta, how to tell which one applies, and what the survivor generally files at Land Titles. Details vary, so a lawyer can confirm your situation.

This article covers the law of Alberta.

Joint tenants or tenants in common

Alberta land titles are kept under the Torrens system created by the Land Titles Act. The way co-owners hold title is shown on that record, and it decides what happens at death.

How to tell which one applies to you

Joint tenancy must be specified on the transfer document, and it is then shown on title. If it is not specified, tenancy in common is the default.

The Law of Property Act says that people who receive land together, other than as executors or trustees, take as tenants in common unless an intention to take as joint tenants sufficiently appears on the instrument. Spouses are not an automatic exception: where land is transferred to a husband and wife, they are joint tenants only if the transfer says so.

Check your current certificate of title rather than relying on memory. Joint ownership can also be changed later. A joint tenancy can be severed, for example by transferring it to oneself as a tenant in common, which takes effect on registration. A severance transfer must be executed by all joint tenants, or the others must consent in writing or have received written notice by personal or substitutional service. A court order over jointly held land also severs the joint tenancy when granted.

If a couple separates, the Court can sever a joint tenancy owned by spouses or adult interdependent partners. For property that is not exempt, the Court shall distribute it equally unless that would not be just and equitable. For adult interdependent partners, these rules generally apply to couples who separate on or after January 1, 2020, and couples can opt out through their own property division agreement.

The Transfer of Land form is where ownership is recorded. It asks for the following information:

• The full names of the current owners, who are the transferors.
• The full names and addresses of the new owners, and the form's tooltips refer to them as joint tenants.
• The full legal land description, not the civic address.
• The consideration, which is the amount paid, if any, and the name and address of the witness to the transferors' signatures.

If you were joint tenants: what the survivor files

Use the Statutory Declaration regarding Proof of Death with an original or notarized copy of a Vital Statistics, Medical Examiner's, funeral director's or cremation certificate. For a death outside Alberta, a comparable document is accepted, and only an original death certificate is returned.

On written application with the required documentation, the Registrar shall cancel the certificate of title and grant a new certificate in the name of the surviving joint tenant. Documents are mailed or delivered to a Land Titles office in Edmonton or Calgary, and in-person service was noted as paused, with phone and email support available.

If you were tenants in common, or the deceased was the sole owner

Here the land vests in the personal representative. The filing is an Application for Transmission to Personal Representative, with the original filed Grant of Probate or Letters of Administration from the Surrogate Court of Alberta. A notarized copy is unacceptable, and grants from other jurisdictions must be re-sealed by the Surrogate Court of Alberta.

The survivor does not automatically get the deceased's share in this case. It follows the will or the rules for an estate, so the executor or administrator takes the lead.

If the executor is administering an estate with a living spouse, the executor shall not distribute any portion of the estate to a beneficiary for 6 months after the grant without the spouse's consent, and is personally liable if they do.

A person who claims an interest in land under a will, trust, transfer or unregistered instrument may be able to file a caveat with Land Titles. Whether that fits your situation is worth confirming with a lawyer.

What to do next

• Get a current certificate of title and see how ownership is shown.
• Collect the death certificate and the will, if any.
• Find out whether the deceased had the transfer drawn as joint tenancy or not.
• Check the mortgage terms, as lender requirements depend on the contract.
• Speak to a lawyer if the title is unclear, a severance may have happened, or the family disagrees.

Frequently asked questions