Right of Survivorship in Ontario: Jointly Owned House Explained

You may have heard that a jointly owned house simply goes to the other owner when one dies. That is often true, but it is not automatic in every case, and the label on title matters a great deal.

This article explains what right of survivorship means, when it applies, the ways it can be undone, and the situations where a family may end up in a dispute over it.

What right of survivorship means

Right of survivorship is the rule that, when one joint tenant dies, the share passes to the surviving co-owners. It operates outside the will, because the share never becomes part of the deceased's estate.

It only applies to joint tenants. A tenant in common's share does not go to the other owners and becomes part of that person's estate. Each co-owner is listed on title as one or the other, so the way title is registered decides whether the survivor takes the share.

This has practical effects. Real estate passing by survivorship is not counted in the estate value for Estate Administration Tax, and Ontario treats real property that does not pass by right of survivorship as one reason an estate normally must be probated.

How the survivor completes the transfer

Even though ownership passes automatically, the record on title needs to be updated. The surviving joint owner makes a survivorship application to have the deceased's name deleted from the parcel register, using the official form with a supporting affidavit.

The survivor states that they held the property as joint tenant with the deceased, that by right of survivorship they are entitled to be owner, and the date of death. Family Law Act statements are also required, saying whether the two were spouses when the deceased died or the deceased was not a spouse, and, as a further option, that the property was not a matrimonial home.

Proof of death accepted includes a death certificate, and a funeral home's statement has also been accepted. For land converted from the old Registry system where no declaration of death was ever deposited, a survivorship application with appropriate proof of death will be required.

Registry guidance from 1996 says a survivorship application is not needed before registering a discharge of a charge signed by a surviving joint chargee. Because that guidance is old, ask a lawyer to confirm current practice.

When survivorship can be defeated: severance

A joint tenancy can be turned into a tenancy in common. This is called severance. The Court of Appeal recognizes three ways to do it.

A land registry bulletin says a joint tenant can sever by signing and registering a transfer to themselves, after which the registrar shows the transferee as tenant in common with the other owners. The bulletin is old, so current practice should be confirmed. Electronic registration recognizes a transfer where transferor and transferee are the same, used to change tenure from joint tenants to tenants in common, as its own registration category.

Creditors matter too. Severance by a creditor's execution must be acted upon before the joint tenant dies. If a writ is filed but not acted on before death, the surviving joint tenant takes the property free of the execution.

Whether a will or steps taken after death can change the outcome depends on the facts, and a lawyer can confirm. Do not assume a will overrides survivorship.

When survivorship is challenged for another reason

Sometimes the dispute is not about severance but about why the names were put on title. Under Pecore v. Pecore, a gratuitous transfer from a parent to an adult child is presumed to be a resulting trust, meaning the child holds it for the parent. The child must prove the parent intended a gift.

The Court of Appeal applies the presumption of resulting trust to gratuitous transfers of property, and the transferor's intention at the time of transfer is what is determinative. In Holtby v. Draper, a gratuitous property transfer was found not to have rebutted the presumption.

In plain terms, if a parent added an adult child to title for nothing, other family members may argue the child holds the house for the parent's estate and not as an owner by survivorship. The result turns on evidence of what the parent intended.

• Evidence of intention can include documents, communications and how the property was used and paid for.
• These disputes are fact-heavy, so outcomes are hard to predict.
• Getting advice early, before positions harden, usually helps.

What to do next

• Check the parcel register to confirm whether the owners were joint tenants.
• Look for any registered transfers, writs or charges that might show severance or creditor activity.
• Gather the death certificate and the date of death.
• Collect any records about why and when the names were put on title.
• Speak with a lawyer before filing a survivorship application if anyone else may claim an interest.

Frequently asked questions