Right of Survivorship in British Columbia Explained

If you own a home, or a bank account, with someone else, you may have heard that it goes to the other person automatically if one of you dies. That is the right of survivorship, and it is not true of every shared asset.

This article explains in plain terms how survivorship works in British Columbia, how it differs from owning as tenants in common, and the situations that can change the result.

This article covers the law of British Columbia.

What the right of survivorship means

When a joint tenant dies, the survivor takes the deceased's interest. The deceased's share does not form part of what the will distributes. The rules on devolution of land recognize this by carving out a right to land by survivorship.

This is useful for couples and families who want property to pass without going through the estate. It also means your will cannot redirect a joint tenancy interest, which surprises many people.

The rest of the deceased's estate is different. It vests in the personal representative without further declaration or order, while property held by survivorship sits outside the estate. That is why it helps to know early on which assets are held jointly and which are not.

Joint tenants and tenants in common

Note that the default rule has exceptions: it does not apply to land transferred to personal representatives or trustees.

How survivorship can end or change

• Severance: a joint tenant may transfer their interest to themselves, which severs the joint tenancy as a transfer to a stranger. The owners then hold as tenants in common and there is no survivorship.
• Deaths close together: if joint owners die within 5 days of each other, or survival is uncertain, WESA ss. 5 or 10 apply for deaths after March 30, 2014. Joint tenants or joint account holders who die together are treated as tenants in common unless a contrary intention appears.
• Judgments: registering a judgment against one co-owner does not sever the joint tenancy, so the survivor takes free of it.

Joint bank accounts and gifts to adult children

Survivorship is not automatic just because a name is on an account. A gratuitous transfer to an adult child, including adding them to a joint account, is presumed to be held on resulting trust for the parent. The survivor must prove the parent intended to give them the right of survivorship in the balance.

The judge weighs all the evidence on a balance of probabilities to find the parent's actual intention when the transfer was made. The presumption decides the case only if the evidence is insufficient. The presumption of advancement (gift) does not apply to adult children, and dependency of an adult child on the parent can be strong evidence against the resulting trust presumption. Evidence of use and control of the account is only marginally helpful and not determinative alone.

Registering the transfer after a death

To register a transfer to the surviving joint tenant at the Land Title Office, an application must be filed with a certified copy of the grant of probate or administration, or a certificate of death. Form 17 is used, selecting 'Transmission to Surviving Joint Tenant'.

The online process through the LTSA requires all owners on title to be individuals holding as joint tenants. It accepts only an original death certificate or grant of probate, not photocopies, notarized copies or a funeral director's certificate. The registration fee is $82.52 per parcel, though amounts like this can change. A legal professional is needed for the online application if any owner on title is a corporation, a trust trustee, or a limited partnership partner.

• Property transfer tax exemption code 08 covers a transfer to the survivor of a joint tenancy as a result of the death of a joint tenant, but it does not apply to additional property transfer tax.
• If the surviving joint tenant dies without transmitting the title, it goes to that survivor's personal representative.
• Judgments naming the deceased as debtor must be listed on the Form 17.

What to do next

• Get a title search to see whether land is held as joint tenants or tenants in common.
• Check the wording of the transfer document for any contrary intention.
• Find out whether anyone has severed the joint tenancy by transferring their interest.
• For joint accounts, gather records showing why the account was opened and what the parent intended.
• After a death, the survivor can apply at the Land Title Office with a certified copy of the grant or a certificate of death, using Form 17.
• Talk to a lawyer before changing how you hold title, because it changes who inherits.

Frequently asked questions