Right of Survivorship in Ontario: What It Means When Someone Dies

Someone has died, and you hear that the house or the bank account "goes by survivorship." It sounds like a technical detail, but it decides who ends up with the property and whether the will matters at all.

This article explains in plain words what the right of survivorship is, what property it covers, and the situations where it does not work the way people expect. It is general information about Ontario, not advice on your own situation.

What survivorship means

When a person dies, their property passes to their estate trustee only if no one else has a right to take it by survivorship. Property that passes by survivorship goes straight to the surviving owner, not into the estate, whether or not there is a will.

That is why survivorship overrides the will. A deceased joint tenant's interest goes to the surviving joint tenant or tenants, not to the people named in the will.

In everyday terms: two people own a house as joint tenants and one dies. The survivor is treated as owning the whole property, and the will has nothing to say about it.

Is your property really held jointly?

Having two or more names on title does not automatically mean survivorship. Land given to two or more people is held as tenants in common unless the document shows on its face that they take as joint tenants. A tenant in common's share does not pass by survivorship.

There are exceptions to the presumption of tenancy in common:

• It does not apply to land given to executors or trustees.
• It also applies between spouses, which includes unmarried partners living together in a conjugal relationship, so they hold as joint tenants only if the deed says so.
• People who acquire land by length of possession hold as tenants in common.

An owner can add a child or partner as a joint owner by conveying the property to themselves jointly with that person. Whether that was truly intended is often the heart of later disputes.

Where survivorship does not work as expected

• Matrimonial home held with someone other than the spouse: if a spouse dies owning the home as a joint tenant with a third person, such as a child, the joint tenancy is deemed severed just before death and the share goes into the estate.
• Joint bank accounts: an adult child added to a parent's account without paying for it is presumed to hold it in trust for the parent and, on death, for the estate. Heirs may challenge the survivor, who may need to show a gift was intended.
• Spouses' accounts: money on deposit in both spouses' names is deemed held as joint tenants.
• Dependant support claims: for these claims, property held by the deceased and another as joint tenants, and certain joint deposits, are counted as part of the net estate.
• Equalization: a surviving married spouse who elects equalization has property received by survivorship credited against the entitlement, unless a written instrument says it is in addition.
• Deaths at the same time: joint tenants and joint account holders who die together, or where it is uncertain who survived, are deemed tenants in common unless a contrary intention appears.

Any joint tenant or tenant in common can also be compelled to make or suffer partition or sale of the land, so joint ownership during life is not always permanent.

Probate and tax

Probate is not always required. A house held in true joint tenancy by a surviving owner can be dealt with without a Certificate of Appointment of Estate Trustee. Jointly owned property that passes automatically to the other owner is not counted in the estate value for estate administration tax. However, a joint asset that the survivor holds on resulting trust for the estate does not escape the tax.

Income tax is separate. A deceased person is considered to have sold their capital property just before death, even if it passes by survivorship. Property going to a surviving spouse or common-law partner resident in Canada can roll over without immediate gain, with conditions. Giving a child a share of capital property during life can trigger a deemed sale at fair market value, and the automatic spousal rollover does not apply to children.

What to do next

• Search the parcel register through OnLand to see how title is actually held.
• Gather the death certificate, the will if any, and the bank or account documents.
• Ask each financial institution what it requires from a surviving account holder.
• Speak with a lawyer if a child was added to title, the home was a matrimonial home, there is a dependant, or heirs disagree.
• Speak with an accountant about the deceased's final tax return.

Frequently asked questions