Survivorship Application or Estate Certificate in Ontario: Which Do You Need?

After a death, many families find that some assets were held jointly and others were in the deceased's name alone. That mix raises a practical question: do you file one application, two, or none at all?

The answer depends on how each asset was owned. This article explains the difference between a survivorship transfer and an estate certificate, so you can sort the assets before you speak to a lawyer or start filling out forms.

Two paths for two kinds of assets

When someone dies, property passes to their estate trustee only if no one else has a right to take it by survivorship. Property with a right of survivorship goes directly to the surviving owner instead, and that rule applies even if the deceased had a will.

So the first job is sorting. Assets that pass by survivorship are dealt with by the survivor, usually through the land registry or the bank. Assets that do not pass by survivorship form the estate, and those are the ones that may need a certificate of appointment of estate trustee.

Sorting the assets

Being on title together does not by itself mean survivorship. Land given to two or more people is presumed to be held as tenants in common unless the document shows on its face that they take as joint tenants. That presumption does not apply to executors or trustees. It also applies between spouses, including unmarried partners in a conjugal relationship, so they hold as joint tenants only if the deed says so.

What a survivorship application involves

Where one of several registered joint owners 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. This is a land registry step, not a probate application.

• 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 right of 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 was recorded in the registry system, proof of death will be required.

To check how a parent or spouse held title, you can search the parcel register through OnLand. A parcel register copy is listed at $37.10 including HST, plus $2.56 for each additional page. ServiceOntario cannot search or explain the records for you.

When you still need an estate certificate

Ontario lists one reason to apply for probate as an estate that includes real property that does not pass to another person by right of survivorship. A house held in true joint tenancy by a surviving owner can be dealt with without a certificate of appointment of estate trustee.

If the estate is valued at up to $150,000, a Small Estate Certificate can be sought, and 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. In a land transmission, an estate trustee may state that no certificate was sought because the estate was not more than $50,000, but a covenant to indemnify the Land Titles Assurance Fund (Form 54 of Regulation 690) is then required.

Estate administration tax is calculated on the estate that goes through the certificate. For applications on or after January 1, 2020, there is no tax on an estate worth $50,000 or less, and above that the tax is $15 for every $1,000 (or part) of value. Jointly owned property that passes automatically to the other owner is not counted. However, a joint asset that the survivor holds on a resulting trust for the estate does not escape the tax.

What to do next

• List every asset and note whether it is in the deceased's name alone, jointly, or has a named beneficiary.
• Get a parcel register for each property and read how title was taken.
• Obtain death certificates and the deed or account documents.
• Ask each bank what it needs from a surviving joint holder, since requirements vary by institution.
• Ask a lawyer to confirm which assets need a survivorship application, which need a transmission, and whether a certificate is required.

If a house was the matrimonial home and was held jointly with someone other than the spouse, special rules may change the outcome, so raise that early with a lawyer.

Frequently asked questions