Right of Survivorship on an Ontario Home After a Death

When a person who owned a home with you dies, you may be wondering whether the house is now simply yours. In many joint ownership situations it is, but the land registry record does not change by itself. Someone has to apply to update it.

This article explains in plain terms how right of survivorship works on an Ontario home, what the application must say, and the situations where the home goes into the estate instead. Your own facts matter a great deal, so treat this as a general guide.

What right of survivorship means

When two or more people hold a home as joint tenants, the survivor becomes the owner when the other dies. That is the right of survivorship. The home passes to you because of how it was owned, not because of the deceased person's will.

For Estate Administration Tax purposes, jointly owned assets that pass automatically to the surviving owners are left out of the estate's value. That is one reason the way a home is held can change the size of the estate.

Be careful about assuming that survivorship property is always out of reach of everyone else. Whether someone such as a dependant could still make a claim depends on the facts, and a lawyer can confirm your position.

Putting title in your name alone

A survivorship application under s. 123 of the Land Titles Act puts title in the surviving joint tenant's name. It is made either on Forms 42 and 43 of Regulation 690 or by statements made and signed by a solicitor.

The statements need to cover three things about the home and the deceased:

• That you held the property as a joint tenant with the deceased.
• That you are entitled to be the owner by right of survivorship.
• The date of death.

Where the death occurred on or after March 1, 1986, the application must also include a Family Law Act statement. It says one of three things: that the deceased and the surviving joint tenant were spouses at death, that the deceased was not a spouse at death, or that the property was not the deceased's matrimonial home.

Land registration practice is now largely electronic, and guidance on estate documents can change. Confirm current requirements with a lawyer before you file anything.

When survivorship does not apply

There is an important exception for matrimonial homes. If a spouse dies owning an interest in a matrimonial home as a joint tenant with a third person, and not with the other spouse, the joint tenancy is deemed severed immediately before death. That share then goes to the estate instead of passing by survivorship.

A matrimonial home is every property in which a person has an interest and that is, or was at separation, ordinarily occupied by the person and their spouse as their family residence.

If the home was in the deceased's name alone, survivorship is not the route. The estate trustee registers a transmission application under s. 124 of the Land Titles Act, and the statements say whether the trustee was appointed with or without a will and whether the property is subject to the deceased's debts or the debts have been paid in full. Only an estate trustee has legal authority to manage or distribute an estate, which includes selling the home.

Tax points to keep in mind

For income tax, a person is treated as having sold all their property just before death, which can create a capital gain or loss on the home. How this applies to a jointly held home depends on who owned what share and how the property passes, so ask an accountant or lawyer.

If property passes to a spouse or common-law partner, or to a spousal trust, the gain is deferred when the property becomes locked in for them no later than 36 months after death. Where the home is a principal residence passing to a spouse or common-law partner, no principal residence designation for the period before death is required on the final return.

Where the home goes to someone other than a spouse or common-law partner, the deemed disposition is reported on Schedule 3 of the final return, and all or part of the gain may be exempt as a principal residence, designated on Form T1255.

What to do next

• Find the current title record or deed and confirm how the home was held.
• Get certified copies of the death certificate and note the exact date of death.
• Work out whether the deceased was your spouse and whether the home was a matrimonial home, since the application needs a Family Law Act statement.
• Check whether any other person also owned a share, because that could change the result.
• Speak to a lawyer about the survivorship application and any tax filings before you sell or refinance.

Frequently asked questions