Proving Estate Entitlement to a Deceased Person's Property in Ontario

When someone dies owning a home or land, relatives often ask who actually has the right to deal with it. Being family, or being told you will get the property, does not prove entitlement. Entitlement is shown by documents, and which documents you need depends on how the property was owned and whether there was a will.

This article walks through the usual Ontario routes: survivorship, probate, the small estate process and dying without a will. Every estate is different, so use it as a map and confirm the details with a lawyer.

Start with how the property was owned

The first question is not who the family members are. It is how the deceased held title. Property owned jointly with a right of survivorship goes to the surviving owner. Property that does not pass that way becomes part of the estate.

An estate normally must be probated if the deceased owned real property that does not pass to someone else by right of survivorship. If the property must be sold, the certificate should be obtained before anyone signs an Agreement of Purchase and Sale.

Anyone can search, view and download current and historical property records, such as a parcel register, through OnLand for a fee. That is a practical way to see how title is actually held. ServiceOntario reviews and certifies registrations but cannot search, give legal advice or explain any property's records.

When a joint owner survives

After a joint tenant dies, the survivor updates title with a Survivorship Application under Land Titles Act s. 123. It states that the applicant held the property as joint tenant with the deceased and gives the date of death. For deaths on or after March 1, 1986, it must also include a Family Law Act spousal statement.

The required statements in survivorship and transmission applications can only be made by a solicitor, who must sign them. So even a straightforward survivorship usually involves a lawyer.

Two exceptions matter. If a spouse dies owning a matrimonial home as a joint tenant with someone other than their spouse, such as an adult child, the joint tenancy is deemed severed immediately before death and survivorship does not operate. And if an attorney signs the survivorship application for the surviving owner, a covenant to indemnify the Land Titles Assurance Fund is required, though since June 7, 2014 it is not required if a spousal statement and a law statement on the deceased's spousal rights are provided.

When the property goes through the estate

If the property is part of the estate, the person with authority is the personal representative, and that authority is normally proven by a court-issued estate certificate. The certificate is what allows the representative to deal with the land and, if there is a will, to transfer it to the beneficiary.

A transfer from a personal representative to a beneficiary in satisfaction of the beneficiary's interest in the estate is not taxable under the Land Transfer Tax Act.

Jointly held assets that automatically become the other owner's on death are excluded from the estate's value for Estate Administration Tax, as is real estate outside Ontario. An Estate Information Return is due within 180 calendar days after the estate certificate is issued.

If there is no will

Without a will, entitlement follows the Succession Law Reform Act rather than anyone's wishes. A common-law spouse does not inherit under that Act. A married surviving spouse may instead elect an equalization payment under the Family Law Act, filed no later than six months after the death.

Because the six-month election deadline is short, relatives in this position should get advice early rather than waiting for the property to be sorted out informally.

What to do next

• Find the death certificate and any will, and note whether the deceased lived in the property.
• Get a parcel register to see how title is held and whether anyone else is on it.
• Check whether the property passes by survivorship or sits in the estate.
• Do not sign an Agreement of Purchase and Sale before the estate certificate is in hand if the property must be sold.
• Note the deadlines that may apply, such as the six-month election and the 180-day return.
• Speak with a lawyer, since survivorship and transmission statements must be made by a solicitor.

If a family member lives in the home, keep it insured and maintained while the paperwork is sorted out, and keep records of any expenses you pay.

Frequently asked questions