Proving Your Right to Inherited Property in Ontario

When someone dies owning a house, the people closest to them often assume the will, or being the obvious heir, is enough to put the property in their name. The land registry does not work that way. It needs documents that show who has legal authority over the property and who is entitled to receive it.

This article walks through the usual proof: the estate certificate from the court, the statements a lawyer signs when title is transferred, and the different path for property that was owned jointly. Every estate is different, so use this as a map and not as a substitute for advice on your own file.

Why the land registry asks for proof

Ontario's land registry is run electronically. Only authorized Teraview account holders and their registered users can create and submit documents, and those groups include lawyers, conveyancers, surveyors, real estate agents, mortgage brokers and financial institutions. This means the transfer has to be submitted by someone with that access, so it is worth confirming with a lawyer how it will be handled.

Registrations are entered by authorized users and then reviewed and certified by ServiceOntario, which updates the property title information. The registry is relying on the statements and documents put in front of it, which is why the proof of your authority has to be in order before the transfer is prepared.

The estate certificate: your 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. If the plan is to sell, this timing matters, so it is worth raising early.

The Certificate of Appointment gives the estate trustee authority to manage the estate assets and pay the estate debts. The choice between the two certificates depends on value.

Estate administration tax for applications on or after January 1, 2020 is $15 per $1,000 (or part thereof) of estate value above $50,000, and it is paid as a deposit when you apply for the certificate. Estates of $50,000 or less owe no tax but still need an Estate Information Return. That return must be filed within 180 calendar days of receiving a certificate.

What the lawyer signs when title is transferred

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. These statements are the registry's way of confirming that the person transferring the property has the right to do so.

There are narrow situations where no certificate was obtained. The registry bulletin allows a statement that the estate is not more than $50,000, but a covenant to indemnify the Land Titles Assurance Fund (Form 54) is then required. This should not be read as a general rule that small estates never need a certificate. A separate, narrow waiver exists only for a property converted from Registry to Land Titles where the transaction is the first dealing after conversion, supported by an affidavit about the estate value and always with an indemnity covenant.

• Do not assume the $50,000 statement removes the need for a certificate; it is a statement a solicitor makes with an indemnity covenant.
• Do not assume the conversion waiver applies to your property; it covers only the first dealing after conversion.
• Ask a lawyer whether the property is in Land Titles or Registry, since the statements differ.

Transferring to a beneficiary and the tax question

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.

If a sibling takes over the house and assumes a mortgage as part of the arrangement, the tax treatment depends on the facts, so confirm it with a lawyer before closing.

If the home was owned jointly

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. How this applies to your situation depends on how title was actually held, so it is worth confirming with a lawyer.

In Land Titles, a surviving joint tenant applies under s. 123 of the Land Titles Act, with statements that they 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: that the deceased and the survivor were spouses when the deceased died, that the deceased was not a spouse, or that the property was not the deceased's matrimonial home at death.

Registering a charge by fewer than all joint tenants does not automatically sever the joint tenancy. If a joint tenant who alone charged their interest dies first, the survivors are entered as owners on a survivorship application, subject to the charge.

What to do next

If a family member refuses to cooperate or the paperwork cannot be completed in the usual way, a court may sometimes help. Under s. 100 of the Courts of Justice Act, a court may by order vest in any person an interest in real property it has authority to order disposed of, encumbered or conveyed. Whether that route fits depends on the facts, so it is a question for a lawyer.

• Find the will, if there is one, and the death certificate.
• Get a recent parcel register or title search to see how the property is held (sole owner, joint tenants or tenants in common).
• Estimate the estate's total value to see which certificate applies.
• Apply for the Small Estate Certificate or Certificate of Appointment before anyone signs a sale agreement.
• Set aside funds for the estate administration tax deposit if the estate is above $50,000.
• Diarize the Estate Information Return deadline of 180 calendar days after the certificate is received.
• Ask a lawyer to prepare the transfer and signed statements, and to confirm land transfer tax treatment.

Frequently asked questions