Updating Title After a Joint Owner Dies in Ontario: The Survivorship Application

When someone who owned your home with you dies, the property may pass to you automatically. That does not change the official record, though. The surviving joint tenant updates title with a Survivorship Application, and how that update affects any later sale or refinancing depends on your situation, so it is worth confirming with a lawyer.

This article walks through how a surviving joint owner in Ontario generally does this, who has to sign, and the situations where the simple route does not apply. Every case turns on how the property was actually held, so treat this as a map and not a substitute for advice on your own title.

What the Survivorship Application does

When a joint tenant dies, the survivor updates title with a Survivorship Application under Land Titles Act s. 123. The application states that you held the property as a joint tenant with the person who died and gives the date of death.

For deaths on or after March 1, 1986, it must also include a Family Law Act spousal statement. Like the other required statements in survivorship applications, it can only be made by a solicitor, who must sign it.

The application is a registration step. It does not create your ownership; it records what the joint tenancy already did.

Who signs and how it is registered

The required statements in survivorship and transmission applications can only be made by a solicitor, who must sign them. You cannot make them yourself, even if you are the survivor.

Documents are registered electronically through Teraview by authorized account holders. How the preparation and registration of your own application is handled depends on your situation, so it is worth confirming with a lawyer.

If an attorney under a power of attorney signs the application for the surviving joint tenant, a covenant to indemnify the Land Titles Assurance Fund is required. Since June 7, 2014, it is not required if a spousal statement and a law statement on the deceased's spousal rights are provided.

Why probate is usually not needed, and the tax effect

An estate normally must be probated if the deceased owned real property that does not pass to someone else by right of survivorship. A home that passes to you by survivorship falls outside that rule, which is why the survivorship route usually does not involve a certificate of appointment.

For Estate Administration Tax, assets held jointly that automatically become the other owner's on death are excluded from the estate's value. Whether a particular asset really passes automatically can depend on the facts, so confirm it before assuming the exclusion applies.

When survivorship does not work

• Joint tenancy with a third person: if a spouse dies owning a matrimonial home as a joint tenant with someone other than their spouse, for example an adult child, the joint tenancy is deemed severed immediately before death and the right of survivorship does not operate. How the deceased's share is dealt with after that depends on the facts, so it is worth confirming with a lawyer.
• Tenants in common: this is a different form of ownership from a joint tenancy, so how the deceased's share is dealt with depends on how title was held. It is worth confirming with a lawyer before registering anything.
• A child added to title: whether the child holds the property beneficially, or holds it for the parent's estate, depends on the facts. Do not assume that being on title settles the question.

If the property did not pass by survivorship and must be sold, the certificate should be obtained before anyone signs an Agreement of Purchase and Sale.

The transmission route compared

For small estates, a personal representative can apply for transmission without a certificate of appointment by stating that no application for one was made and that the estate's total value is not more than $50,000. A covenant to indemnify the Land Titles Assurance Fund is required in that case.

What to do next

• Get a copy of the death certificate and note the exact date of death.
• Find out how title was held: joint tenants or tenants in common. A parcel register search can show current and historical records.
• Note whether the deceased was married and whether the other joint owner was their spouse.
• Gather any power of attorney if someone else will sign for you.
• Speak with a lawyer, since the statements must be made by a solicitor.

If a third person such as an adult child was on title, or the ownership form is unclear, ask a lawyer before registering anything.

Frequently asked questions