- The proof you need depends on how the deceased held the property: in their name alone, as a tenant in common, or as a joint tenant.
- Probate is normally needed when the deceased owned real property, and a Certificate of Appointment or Small Estate Certificate should be obtained before anyone signs an agreement to sell it.
- A surviving joint tenant applies by survivorship, with statements that only a solicitor can make.
- If a transfer cannot be completed in the usual way, a court may by order vest an interest in real property in a person.
After a death, being named in a will or being a close relative is not usually enough by itself for a bank, a buyer or the land registry. They want documents showing that you, or the person acting for the estate, have legal authority over the property.
The right documents depend on how the property was owned and who is making the claim. This article walks through the common situations in Ontario, so you know what to gather and when to involve a lawyer.
Start with how the property was owned
Joint tenancy includes a right of survivorship. Tenancy in common does not, so a deceased tenant in common's interest does not pass automatically to the other owner and falls into the estate. That single difference changes which documents you need.
| How it was owned | What generally shows entitlement |
|---|---|
| In the deceased's name alone | An estate certificate for the person acting, then a transfer to the beneficiary. |
| Joint tenants | A survivorship application with the date of death and required statements. |
| Tenants in common | The deceased's share goes into the estate, so an estate certificate is generally the starting point. |
If you are unsure how title was held, a title search will show it. Public title records can be searched through OnLand for a fee.
Estate certificates: the main proof of authority
Probate is normally needed when the deceased owned real property. A Certificate of Appointment of Estate Trustee or a Small Estate Certificate should be obtained before anyone signs an agreement of purchase and sale of the deceased's real property. A Small Estate Certificate is available for estates valued up to $150,000. Above that, a Certificate of Appointment of Estate Trustee is applied for.
The Certificate of Appointment gives the estate trustee authority to manage the estate assets and pay the estate debts. This is why buyers, lenders and the land registry look for it: it shows who can deal with the property.
Note that the certificate proves the estate trustee's authority. It is not, on its own, a transfer of the house to a beneficiary. A beneficiary generally needs the estate trustee to transfer the property to them.
If you are a surviving joint tenant
A surviving joint tenant in the Land Titles system applies under section 123 of the Land Titles Act. The application includes statements that you held as joint tenant with the deceased and are entitled by right of survivorship, plus the date of death. These statements can only be made by a solicitor.
For a death on or after March 1, 1986, the application must also be supported by a Family Law Act statement. It says that the deceased and the survivor were spouses when the deceased died, or that the deceased was not a spouse, or that the property was not the deceased's matrimonial home at death. Under section 26(1) of the Family Law Act, a joint tenancy between a spouse and a third person in a matrimonial home is deemed severed immediately before death.
A charge registered by fewer than all joint tenants does not automatically sever the joint tenancy. If the joint tenant who alone charged their interest dies first, the survivors are entered as owners on a survivorship application, subject to the charge.
If you are a beneficiary receiving the property
Ministry guidance states that a transfer from an estate's personal representative to a beneficiary, satisfying the beneficiary's interest in the estate, is not subject to land transfer tax and is reported as nil in paragraph 4 of the affidavit. That is different from a sibling who buys the others out for money, where the amount paid and any mortgage assumed is consideration.
On a Land Titles transfer by an estate trustee, a solicitor must sign statements covering authority to transfer, any court appointment (a certificate with or without a will), Family Law Act spousal rights, and consents. Only authorized Teraview account holders and their registered users can submit documents electronically, and that group includes lawyers. In practice, you will need a lawyer or other authorized user to carry out the registration.
- The will, if there is one, and the death certificate.
- The Certificate of Appointment or Small Estate Certificate, where one was issued.
- Identification for the estate trustee and for you.
- Proof of how title was held, such as a current title search.
When the usual paperwork does not work
Sometimes the usual route is blocked. A co-owner may refuse to sign, or no one is willing to act as estate trustee. Under section 100 of the Courts of Justice Act, a court may by order vest in any person an interest in real property that it has authority to order disposed of, encumbered or conveyed.
Land registry guidance says a vesting order should use the word vest, avoiding convey, transfer or re-vest, and should state the full name and date of birth of the party in whom the land vests. The guidance also contemplates a court order directing the Land Registrar to alter the register, which is a separate document type from a vesting order. Which order fits depends on the facts, so this is a matter for a lawyer.
What to do next
- Order a current title search to confirm how the deceased held the property.
- Locate the will, the death certificate and any mortgage or lender information.
- Find out whether an estate certificate has been applied for or issued.
- If you are a surviving joint tenant, ask a lawyer to prepare the survivorship application.
- If the title is only in the deceased's name, ask a lawyer who should apply for the certificate and how the transfer to you will be registered.
- Do not sign an agreement to sell the property before the certificate is in place.
Frequently asked questions
Is a will enough to prove I am entitled to a house?
Usually not by itself. Probate is normally needed when the deceased owned real property, and a certificate should be obtained before anyone signs an agreement of purchase and sale. The certificate shows who has authority to deal with the property.
What if the house was owned jointly?
If it was held as joint tenants, the survivor can apply by survivorship, with statements made by a solicitor and the date of death. If it was held as tenants in common, the deceased's interest falls into the estate.
Do I pay land transfer tax when the estate transfers the house to me?
Ministry guidance says a transfer from an estate's personal representative to a beneficiary, satisfying the beneficiary's interest, is not subject to tax under the Act. If you pay money to buy out others, that amount is consideration.
What if someone will not sign the transfer?
A court may by order vest an interest in real property in a person. The right type of order depends on the facts, so speak with a lawyer.
Sources
- Ontario.ca – Transactions with Nominal Consideration — ontario.ca
- Ontario.ca – Register land documents electronically — ontario.ca
- Ontario.ca – Land Registry overview — ontario.ca
- Ontario Land Registration Bulletin 2000-6 – Estate documents — ontario.ca
- Ontario Land Registration Bulletin 86001 – Family Law Act, 1986 — ontario.ca
- Ontario Land Registration Bulletin 96005 – Joint Tenancy — ontario.ca
- Ontario.ca – Apply for probate of an estate — ontario.ca
- Ontario Land Registration Bulletin 2024-02 – Court Orders — ontario.ca
Links go to official government, court and regulator pages. The law changes — confirm you are reading the current version.
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