Transferring a House After Death in Ontario: Land Registry Steps

When someone dies owning a house, the title does not simply move to the person named in the will. Someone with legal authority has to deal with the property, and the land registry will want proof of that authority.

This article walks through the general Ontario steps for a beneficiary or estate trustee, including when probate is needed and the exceptions that sometimes apply. The details of electronic registration change, so a lawyer will confirm the current process.

Start with who has authority

The deceased's property vests in the personal representative, who holds it as trustee for the people entitled, subject to the payment of debts. Ontario guidance says that if the deceased owned real property, the estate normally has to be probated.

The land registry side is consistent with that. The Land Titles Act generally requires the estate trustee to obtain a certificate of appointment before dealing with land after an owner dies.

When the house may not go through the estate

Not every house is part of the estate. Assets held jointly pass according to how they are owned, and probate is not always required for them. How a surviving owner then updates title at the land registry depends on the property, so it is worth confirming the current steps with a lawyer.

There is an important exception for the matrimonial home. If a spouse dies owning it as joint tenant with someone other than their spouse, the joint tenancy is deemed severed immediately before death, so that share forms part of the estate. A spouse who has no interest in the matrimonial home but was living there at the death may stay rent-free for 60 days.

There is also a narrow exception to the certificate requirement. Where there is a will, the certificate may be waived if the property was converted by the Ministry from the registry system to land titles and this is the first dealing since conversion. The affidavit must set out the estate's value and state that the will is the last will and that no certificate was applied for, and a covenant to indemnify the Land Titles Assurance Fund is still required. Whether it fits your situation is a question for a lawyer.

Getting the certificate of appointment

The application is filed in the county or district where the deceased had a fixed place of abode, or, if there was none in Ontario, where the property is located. The main documents include the Form 74A application, a draft certificate in Form 74C, the original will and any codicils, proof of death, any renunciations and consents, and a bond where required.

The application must be served on every beneficiary before filing. Estate Administration Tax is based on the value of the estate. Ontario real estate is valued less encumbrances such as a mortgage or lien. No tax is payable if the estate is worth $50,000 or less.

Applications are typically processed within 15 business days, though the registrar may ask for further information. The certificate is issued electronically and sent by email unless a paper copy was requested.

Selling or transferring to beneficiaries

With the certificate in hand, the estate trustee can sell the house or transfer it to a beneficiary. A sale made only for the purpose of distribution is not valid without the beneficiaries' concurrence, or approval from the Children's Lawyer or the Public Guardian and Trustee. A sale involving a minor's interest needs the Children's Lawyer's written approval or a judge's order.

Timing rules may also apply. An estate cannot be distributed on an intestacy until one year after the death. If a married spouse survives, no distribution may be made within six months of the death unless the spouse consents in writing or the court authorizes it. That spouse must also elect between taking under the will or intestacy and claiming an equalization payment, with the election filed within six months.

Real property the personal representative has not dealt with within three years of death vests in the beneficiaries without a conveyance, unless a caution is registered in the prescribed form. That is a backstop, not a plan; most estates should deal with the house well before then.

What to do next

• Get a copy of the title and confirm how the deceased owned the house.
• Find out whether there is a mortgage, lien or other encumbrance.
• Locate the original will and decide who will apply as estate trustee.
• Check whether a spouse lives in the home and whether any spousal election is pending.
• Do not sell or transfer until you have confirmed the required authority and approvals.
• Ask a lawyer to confirm the current land registry procedure for your property.

Frequently asked questions