Survivorship and Estate Applications: How They Fit Together in Ontario

Many families hold some assets jointly and others in one person's name alone. When that person dies, the two kinds of assets follow different paths.

This article explains how survivorship steps and estate steps fit together in Ontario, so you can sort what needs an estate trustee, what needs a probate application, and what needs only a survivorship filing.

Two tracks after a death

Property goes to the personal representative (estate trustee) only if no one else has a right to take it by survivorship. Survivorship property goes straight to the surviving owner, with or without a will. The estate trustee deals with everything else.

Ontario lists one reason to apply for probate as the estate including real property that does not pass to another person by right of survivorship. So a house held in true joint tenancy by a surviving owner can be dealt with without a Certificate of Appointment of Estate Trustee.

Sorting the assets

If the survivor was the last joint owner to die, nobody is left to take by survivorship, so the land goes to that person's estate trustee under the transmission rules.

The survivorship application for land

Where one of several registered joint tenants dies, the land registrar may delete the deceased owner's name from the parcel register on an application with the evidence the Director of Titles specifies. The applicant may complete Forms 42 and 43 of Regulation 690, or use statements. The statements say the applicant held the property as joint tenant with the deceased, is entitled by survivorship, and give the date of death.

If the death was on or after March 1, 1986, a Family Law Act statement is needed, and only a solicitor may make and sign it. Where no death declaration is recorded, proof of death will be required.

One exception can change the outcome. If a spouse dies owning a matrimonial home as a joint tenant with a third person, such as a child, the joint tenancy is deemed severed immediately before death and the share goes into the estate.

When probate and tax come into play

A Small Estate Certificate can be sought if the estate is valued at up to $150,000. Above that, the application is for a Certificate of Appointment of Estate Trustee, made to the Superior Court of Justice in the county or district where the deceased lived.

For applications on or after January 1, 2020, there is no estate administration tax on an estate worth $50,000 or less, though the return is still required. Above that, the tax is $15 for every $1,000 (or part) of the estate's value, due when the certificate is issued. Jointly owned property that passes automatically to the other owner is not counted. Property in another person's name that belongs to the deceased is counted, including a joint asset the survivor holds on resulting trust for the estate.

The Estate Information Return must be filed within 180 calendar days after the certificate is issued. In a land transmission for an estate of not more than $50,000, an estate trustee may state that no certificate application was made, and a covenant to indemnify the Land Titles Assurance Fund is then required.

What to do next

• List every asset and mark whether it is solely owned, jointly owned or has a named beneficiary.
• Search the parcel register for each property to see how title is held.
• Identify who will act as estate trustee for the solely owned assets.
• Keep the death certificate and account records together for the bank and land registry.
• Ask a lawyer to confirm which steps apply, especially for a matrimonial home or a joint asset a parent funded.

Land registry records are searched through OnLand, and ServiceOntario cannot search or explain records for you.

Frequently asked questions