Right of Survivorship in Ontario: When a Joint Owner Dies

When one of two people who own a home together dies, the survivor often wonders whether the house is now theirs automatically or whether it has to go through the will. The answer depends on how the two of you held title, and that is something you can check on the ownership records for the property.

This article explains in plain terms how right of survivorship works, what the surviving owner generally has to do at the land registry, and the situations where things are less straightforward. It is general information, not advice on your particular property.

How right of survivorship works

Joint tenancy includes a right of survivorship. Tenancy in common does not. That means if a tenant in common dies, their interest does not pass automatically to the other owner and instead falls into the estate.

In everyday terms, a surviving joint owner generally takes the deceased owner's share because of the way title was held, not because of what a will says. How a will interacts with jointly held property depends on your situation, so it is worth confirming with a lawyer.

Changing between tenancy in common and joint tenancy between the same parties is not a conveyance, so the consideration for land transfer tax purposes is nil.

What the survivor does at the land registry

Where the property is in the Land Titles system, a surviving joint tenant applies under s. 123 of the Land Titles Act. The application includes statements that you held as joint tenant with the deceased, that you are entitled by right of survivorship as surviving joint tenant, and the date of death. Those 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.

Only authorized Teraview account holders and their registered users can create and submit documents in Ontario's electronic land registration system. Authorized groups include lawyers, conveyancers, surveyors, real estate agents, mortgage brokers and financial institutions. Entries are then reviewed and certified by ServiceOntario, which updates the title information.

When survivorship is not as simple as it sounds

• Matrimonial home: under s. 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. If you owned with someone other than the spouse, this can change the result.
• A charge by one owner: registering a charge 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.
• Enforcement of that charge: severance does occur if the chargee exercises power of sale or forecloses.
• Unclear title: if you are not sure whether you held as joint tenants or tenants in common, the registered documents are the starting point and a lawyer can read them for you.

The registry bulletins behind some of these rules are older documents, so how they apply today to your situation is worth confirming with a lawyer.

If the property goes through the estate instead

If the deceased was a tenant in common, or owned the property alone, the estate is involved. Probate is normally needed when the deceased owned real property, and 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, and above that a Certificate of Appointment is applied for.

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, paid as a deposit when applying. An Estate Information Return must be filed within 180 calendar days of receiving a certificate.

What to do next

• Get a copy of the current title record and the deed, and look at how the owners are described.
• Locate the death certificate and note the exact date of death.
• Find out whether any mortgage or other charge is registered, and who signed it.
• Consider whether the deceased was a spouse and whether the home was a matrimonial home.
• Ask a lawyer to prepare the survivorship application, since the statements must be made by a solicitor.
• Tell your home insurer and, if you have one, your title insurer about the death and ask what they require.

Frequently asked questions