Tenants in Common in Ontario: What Happens to a Share on Death

When one of the people on title to a home dies, the first question is usually who now owns what. The answer depends on how the owners held title, and many people are surprised to learn that the default in Ontario is not the one they assumed.

This article explains how a tenant in common's share passes after death, how that compares with joint tenancy, and what surviving co-owners and heirs should look at first. It is general information, not advice on your particular property.

The default rule: tenants in common

Under the Conveyancing and Law of Property Act, where land is conveyed to two or more people (other than executors or trustees), they take as tenants in common, not joint tenants, unless the document shows an intention that they take as joint tenants.

The same section says this applies even where one of the co-owners is the spouse of another. So a couple who bought together are not automatically joint tenants. What the transfer document says matters.

What happens to the share when an owner dies

The key difference between the two ways of owning is what happens at death.

In practical terms, if the deceased was a tenant in common, the survivors do not simply take over that share.

What this means for survivors and heirs

• Surviving co-owners keep their own shares, but the deceased person's share does not automatically come to them if the owners were tenants in common.
• Heirs may end up sharing ownership of the property with the surviving co-owners.
• The person handling the estate will usually need to deal with the deceased's share, so the timing of any sale or buyout can depend on how the estate is administered.
• If the owners were joint tenants, the survivors take the share directly and it does not form part of the estate.

Whether a property can be sold, bought out or kept as is depends on the facts and on the wishes of everyone involved. A lawyer can explain the options.

Special cases to keep in mind

• Executors or trustees who receive land together are outside the default rule that makes co-owners tenants in common.
• If the owners clearly intended joint ownership, the document needs to show that intention. Wording that is unclear can lead to disputes, so check the actual transfer document.
• If the property is rented out, each co-owner enters only their own share of the capital cost allowance on their tax filing. An heir or the estate should ask an accountant how the rental reporting changes after a death.

What to do next

• Get a copy of the transfer or deed and read how the owners took title.
• Find the deceased owner's will, if there is one, and identify who is handling the estate.
• Do not assume the survivors own the whole property until you have confirmed how title was held.
• If the property is a rental, speak with an accountant about reporting.
• Talk to a lawyer before you sign anything about selling, buying out or transferring a share.

Frequently asked questions