Survivorship Application in Ontario: Steps to Transfer a Home

When a co-owner of a home dies, the surviving owner often assumes they must go through probate before the house can be sold or refinanced. If the home was held as joint tenants, that is usually not the case. The deceased's interest goes straight to the survivor, and the remaining job is to update the land registry.

This article walks through the order of steps, the documents involved and the situations where the simple route does not apply. Every title is different, so treat it as a map and not a substitute for checking your own parcel register.

Step one: confirm the home passed by survivorship

Property that passes by survivorship goes directly to the surviving owner and does not become part of the estate, whether or not there is a will. Survivorship also overrides the will, so a deceased joint tenant's interest does not go to the will's beneficiaries.

Being on title together does not automatically create survivorship. Land conveyed 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. Spouses and unmarried partners living in a conjugal relationship are caught by the same presumption, so they 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 with entering that person's representatives instead. In that case the home is dealt with through the estate, not through a survivorship application.

What a survivorship application is

Under Land Titles Act s. 123, when 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. It is a land registry step, not a probate application.

Ontario lists a house held in true joint tenancy by a surviving owner as something that can be dealt with without a Certificate of Appointment of Estate Trustee. That is why many survivors never need to open an estate file for the home itself.

Documents and statements you will need

The applicant may complete Forms 42 and 43 of Regulation 690, or use statements. The statements say that the applicant held the property as joint tenant with the deceased, that they are entitled by right of survivorship, and the date of death.

• A recent parcel register showing how title was held and who the registered owners are
• Proof of death, since a survivorship application with appropriate proof of death is required where no death declaration was recorded
• The date of death and the survivor's details for the statements
• A Family Law Act statement if the death occurred on or after March 1, 1986

For the Family Law Act statement, one of three things must be stated: the deceased and the surviving joint tenant were spouses at the death, 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 these statements.

The usual order of steps

• Search the parcel register through OnLand to see how title was held. ServiceOntario cannot search or explain records for you.
• Confirm the deceased and the survivor were joint tenants and that no other owner or interest complicates things.
• Gather proof of death and prepare the application using the forms or statements.
• Have the Family Law Act statement made and signed by a solicitor where it applies.
• Submit the application so the registrar can delete the deceased owner's name from the parcel register.

Once the register is updated, the survivor is the sole registered owner and can deal with the home in the usual way. If that survivor later dies as the last joint owner, no one is left to take by survivorship, and the land goes to that person's estate trustee under the transmission rules.

When the simple route does not apply

• Matrimonial home held with someone other than the spouse: 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.
• Tenancy in common: the share goes through the estate, not by survivorship.
• Last surviving owner: the land passes to the personal representative.
• Small estate transmissions: 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.

Tax is a separate question. A deceased person is considered to have sold their capital property just before death, even if it passes by survivorship. A transfer to a surviving spouse or common-law partner resident in Canada can roll over without immediate gain in some cases, and some or all of the gain on a principal residence may be exempt.

What to do next

• Order the parcel register and read how title is held
• Collect the death certificate and any related proof of death
• Note whether the home was a matrimonial home and who the owners were
• Ask an accountant about the deceased's final tax return
• Speak with a lawyer before applying if title is unclear, a child or third party is on title, or family members may dispute ownership

Frequently asked questions