Survivorship Application for Jointly Owned Land in Ontario

If you owned land jointly and your co-owner has died, the title still shows their name. To deal with the property later, such as selling or mortgaging it, you will usually need to have their name removed.

This article explains the survivorship application in Ontario and what it generally involves. The details can vary with the type of title and the registry's current procedures, so confirm them with a lawyer.

What the survivorship application is

Under Land Titles Act s. 123, where one of two or more registered owners holding land as joint tenants dies, the land registrar may, on an application with the evidence the Director of Titles specifies, delete the deceased owner's name from the parcel register.

It is a land registry step, not a probate application. Ontario also lists probate as needed where the estate includes real property that does not pass by right of survivorship, so a house held in true joint tenancy can be dealt with without a Certificate of Appointment of Estate Trustee.

Check that survivorship really applies

Start by confirming how title was held. Land in two or more names is generally held as tenants in common unless the document shows they take as joint tenants. Spouses and common-law partners hold as joint tenants only if the deed says so.

A tenant in common's share does not pass by survivorship, and the Land Titles Act deals separately with the deceased's representatives. You can see the parcel register through OnLand, and ServiceOntario cannot search or explain records for you.

What goes into the application

• Forms 42 and 43 of Regulation 690, or statements that you held the property as joint tenant with the deceased, that you are entitled by right of survivorship, and the date of death.
• Proof of death, where no death declaration was recorded in the registry system.
• If the death was on or after March 1, 1986, one Family Law Act statement: the deceased and the survivor were spouses at death, or the deceased was not a spouse at death, or the property was not the deceased's matrimonial home.

Only a solicitor may make and sign the Family Law Act statements. This matters because a matrimonial home held jointly with someone other than the spouse is treated differently on death.

Special situations

• Last surviving owner: once the last joint tenant dies, no one is left to take by survivorship, and the land goes to that person's estate trustee under the transmission rules.
• Small estates: an estate trustee may state in a transmission application that no certificate was sought because the estate was not more than $50,000, and a covenant to indemnify the Land Titles Assurance Fund (Form 54 of Regulation 690) is then required.
• Debts and writs: whether a deceased owner's debts or writs affect the survivor can depend on the facts, so ask a lawyer.

What to do next

• Get a copy of the parcel register and the deed.
• Obtain proof of death, such as the death certificate.
• Confirm whether the property was a matrimonial home.
• Ask a lawyer to prepare and register the application.
• Keep in mind possible tax on the deceased's final return.

Frequently asked questions