- How title moves depends on whether the owner held land alone, as a joint tenant, or through an estate with or without a certificate.
- A surviving joint tenant on Land Titles uses survivorship statements, which must be made by a solicitor.
- Applications must state whether the land is subject to the deceased's debts or the debts have been paid.
- Before distributing, a legal representative needs a CRA clearance certificate or risks personal liability.
When someone who owned land dies, the property record does not update on its own. An estate trustee or surviving owner generally needs to take formal steps to change who is shown as the owner.
This article walks through the common paths in plain language. How this applies depends on your situation, so it is worth confirming with a lawyer.
First, work out which path applies
The path depends on how the deceased held title and whether a court certificate was issued. Ontario's guidance says that if the deceased owned real property the estate normally has to be probated, but land registry practice also recognizes cases where no certificate was obtained because the estate is $50,000 or less.
| How the deceased held the land | Typical registry approach |
|---|---|
| Alone, with a certificate of appointment | Estate trustee applies for transmission, naming the court, file number and date, and stating the appointment remains in full force |
| Alone, no certificate because the estate is $50,000 or less | Application says so, and a covenant to indemnify the Land Titles Assurance Fund (Form 54) is required |
| As a joint tenant with another person | Survivor uses survivorship statements, with a Family Law Act statement for deaths on or after March 1, 1986 |
If you are the estate trustee
An applicant for transmission as estate trustee must state that they are the estate trustee, executor or administrator. Where a certificate was issued, the application gives the court, file number and date and confirms the appointment is still in full force.
To get that certificate in the first place, a probate application includes Form 74A, an affidavit of service, a draft certificate and, for a will, an affidavit. You file in the Superior Court in the county where the deceased lived and send the application to everyone entitled to a share before filing. Processing is typically 15 business days.
A small estate certificate is available for estates valued at $150,000 or less. The signed application goes to entitled beneficiaries at least 30 days before filing, and an estate over $50,000 still pays estate administration tax.
If you are a surviving joint owner
On Land Titles, a surviving joint tenant uses survivorship statements (Forms 42 and 43 of Reg. 690, or solicitor statements). They say the applicant held as joint tenant with the deceased, is entitled as survivor, and give the date of death. For deaths on or after March 1, 1986, a Family Law Act statement is also required. The statements must be made by a solicitor.
Jointly owned assets that pass automatically to the other owner are left out of the value for estate administration tax. Whether a particular property was truly held as joint tenants is a title question, so check the registered ownership before relying on it.
Debts, tax and the cost side
Transmission and transfer applications must state either that the land is subject to the deceased's debts or that the debts have been paid in full. If the personal representative sells with the required affidavit, a good-faith purchaser for value gets title free of the estate's debts, while land divided in specie stays subject to debts.
- On death, the deceased is deemed to have disposed of capital property at fair market value, and the person who acquires it is deemed to acquire it at that value.
- Property passing to a spouse or common-law partner, or a qualifying spousal trust, can be rolled over at the deceased's adjusted cost base if it vests indefeasibly within 36 months after death.
- Estate administration tax is $15 per $1,000 over $50,000, and real estate counts net of mortgages and liens.
- An Estate Information Return is due within 180 calendar days after the certificate is issued.
Before distributing property, a legal representative must obtain a clearance certificate. Distributing without one can make them personally liable for tax owing, up to the value distributed. Whether capital gains or other tax arises on a particular property is a question for an accountant.
What to do next
- Get a current parcel register or title search to see exactly how the owner held title.
- Gather the death certificate, the will, and any certificate of appointment or small estate certificate.
- Confirm whether a mortgage or lien is registered, since it affects the value and the debts statement.
- Have a lawyer prepare the transmission or survivorship documents. For a surviving joint tenant, the survivorship statements must be made by a solicitor.
- Confirm with a lawyer that the registry requirements are still the current ones before you file, because practice notes and forms change.
- Do not transfer to an heir until the tax and clearance steps are dealt with.
Frequently asked questions
Do I always need probate to transfer inherited land?
Ontario's guidance says that when the deceased owned real property the estate normally has to be probated. Registry practice also describes a case where no certificate was obtained because the estate is $50,000 or less, with a covenant to indemnify the Land Titles Assurance Fund. A lawyer can tell you which applies.
How does a surviving joint owner get onto title?
On Land Titles, the survivor uses survivorship statements saying they held as joint tenant and are entitled as survivor, with the date of death. A Family Law Act statement is also needed for deaths on or after March 1, 1986, and a solicitor must make the statements.
Does the land stay liable for the deceased's debts?
It can. Applications must state whether the land is subject to debts or they are paid in full. Land divided in specie stays subject to debts, while a good-faith purchaser from a personal representative selling with the required affidavit gets title free of them.
Can I give the property to the heir right away?
It is risky to do so before the tax steps are dealt with. A legal representative who distributes without a CRA clearance certificate can be personally liable for tax owing, to the extent of the value distributed.
Sources
- Income Tax Act s.70 (Justice Laws) — Justice Laws (federal)
- Income Tax Act s.159 (Justice Laws) — Justice Laws (federal)
- Ontario – Estate Administration Tax — ontario.ca
- Ontario – Apply for probate of an estate — ontario.ca
- Ontario – Probate of a small estate — ontario.ca
- Ontario – Administering estates / Probate of a small estate — ontario.ca
- Ontario Land Registration – Bulletin 2000-6 Estate documents — ontario.ca
- Ontario Land Registration – Bulletin 76020 Debts of an estate — ontario.ca
Links go to official government, court and regulator pages. The law changes — confirm you are reading the current version.
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