Survivorship Application Ontario: A Comprehensive Guide

A survivorship application in Ontario allows the surviving joint owner of property to remove a deceased co-owner from title without going through probate.

When property is owned as joint tenants, the right of survivorship applies. Upon the death of one owner, their interest automatically transfers to the surviving owner. A survivorship application formalizes this transfer in the Ontario land registration system.

What is a Survivorship Application?

A survivorship application is a legal registration filed under Ontario’s land registration system to remove a deceased joint tenant from title.

It confirms that:

• The property was held in joint tenancy
• One joint owner has died
• The surviving owner is now the sole registered owner

This process does not transfer ownership — ownership passes automatically by law. The application updates the land records to reflect that change.

A Survivorship Application in Ontario is a legal procedure used when one owner of a property held in joint tenancy passes away. In such instances, the property is automatically passed to the surviving joint tenant(s) without going through probate or being included in the deceased’s estate for distribution. This process is based on the principle of the “right of survivorship”, a feature of joint tenancy ownership.

The application is a document submitted to the Ontario Land Registry Office that allows the deceased individual’s name to be removed from the property title, effectively transferring full ownership to the surviving joint tenant(s). The application must be accompanied by a copy of the death certificate and any other required documents to prove the joint tenant’s death.

It’s important to differentiate a Survivorship Application from a will, as the former operates outside the terms of the deceased’s will under the joint tenancy arrangement. Survivorship application is a legal tool specifically designed to streamline the process of property transfer in the event of death, ensuring that the surviving owner(s) can assert their rights to the property without undue delay or the need for probate court proceedings. This process is guided by section 123 of Land Titles Act, R.S.O. 1990, c. L.5.

When Does the Right of Survivorship Apply?

The right of survivorship applies only where property is owned as joint tenants.

It does not apply where ownership is held as:

• Tenants in common
• Trust ownership
• Corporate ownership

Under joint tenancy:

• Ownership is equal
• Each owner holds an undivided interest
• Upon death, the interest passes automatically to the surviving joint owner

No court order is required if joint tenancy was validly created and not severed prior to death.

Who Can Apply For a Survivorship Application?

A Survivorship Application applies only when co-owners hold property as joint tenants, allowing ownership to transfer automatically upon a co-owner’s passing. This process is not available for properties held as tenants in common.

How Do You Confirm the Property Was Held in Joint Tenancy?

Before filing a survivorship application, title must be reviewed.

A real estate lawyer will conduct a title search through Ontario’s Electronic Land Registration System (ELRS) to confirm:

• The ownership structure
• Whether joint tenancy was registered
• Whether any severance occurred prior to death

If joint tenancy was severed before death, survivorship does not apply and probate may be required.

Does a Survivorship Application Avoid Probate?

Yes — in most cases.

Because ownership passes automatically under joint tenancy, the deceased’s interest does not form part of the estate for probate purposes.

This means:

• No Certificate of Appointment of Estate Trustee is required for the property
• The transfer is not subject to Estate Administration Tax
• The property does not flow through the will

However, survivorship does not eliminate all estate issues. If there is a dispute about beneficial ownership, litigation may still arise.

Difference between Joint Tenants & Tenants in Common

In property law, there are two ways in which two or more individuals can hold title to a property – “Joint Tenants” and “Tenants in Common“. The main differences are their survivorship rights and ability to endow the property interest.

Joint Tenants:

• Right of Survivorship: This is the defining characteristic of joint tenancy. When one joint tenant dies, their interest in the property automatically passes to the surviving joint tenant(s), not to the deceased tenant’s heirs or as dictated by their will.
• Equal Ownership: Joint tenants hold an equal interest in the property. For example, if there are two joint tenants, each owns 50%, and if there are four, each owns 25%.
• Undivided Interest: Each tenant has the right to use and enjoy the entire property, even though they only own a portion.
• Simultaneous Acquisition: Joint tenants usually acquire their interest in the property simultaneously and through the same deed.
• Indivisible Sale: All joint tenants must agree to the sale if the property is sold since the ownership is undivided.

Tenants in Common:

• No Right of Survivorship: Unlike joint tenancy, when a tenant in common dies, their interest in the property can be left to their heirs or designated in their will.
• Divisible Ownership: Tenants in common can hold unequal shares in the property. For example, one tenant can own 60% while another owns 40%.
• Divided Interest: Although tenants in common share the right to use and enjoy the property, they own a specific portion of it.
• Independent Acquisition: Tenants in common can acquire their interests at different times and through different deeds.
• Separate Sale: Each tenant in common can sell or mortgage their share of the property independently without the consent of the other tenants.

In a joint tenancy, the property does not become part of a deceased person’s estate for probate purposes, whereas in a tenancy in common, it does. Thus, individuals must choose the form of ownership that best suits their circumstances and intentions for the property.

What Happens If the Property Was Held as Tenants in Common?

If property was owned as tenants in common:

• There is no right of survivorship
• The deceased’s share forms part of their estate
• Probate is typically required before transfer

A survivorship application cannot be filed in this situation.

Ownership structure at the time of death determines the process.

Is Land Transfer Tax Payable on a Survivorship Application?

No, land transfer tax is not applicable to survivorship application. Because ownership passes automatically by operation of law under joint tenancy, there is no transfer for consideration.

As a result:

• Ontario Land Transfer Tax does not apply
• No purchase price is declared
• No consideration changes hands

However, if the joint tenancy was altered or severed prior to death, tax implications may differ.

Do You Need a Lawyer to File a Survivorship Application?

Yes, you will need a lawyer to file a survivorship application. Ontario’s land registration system requires electronic registration by a licensed real estate lawyer. Survivorship applications cannot be registered directly by individuals.

A lawyer will:

• Review title
• Confirm joint tenancy
• Prepare and file the application
• Ensure compliance with land registration requirements

Filing a Survivorship Application

Filing a survivorship application begins with hiring a real estate lawyer who handles property transfers. The lawyer will guide the applicant through the necessary steps to file the application.

The applicant must provide all required documents, including the original death certificate, which the lawyer will use to prepare the required registration forms. Once the documents are ready, a signing appointment is scheduled, where the lawyer reviews and finalizes the application with the surviving joint owner before submission and processing.

What your Lawyer will require

The following is required for the survivorship application:

• Proof of Death: Proof of death is provided either by an original death certificate or an original Certificate of Appointment of Estate Trustee with or without a will.
• Proof of Ownership: This can be done by your lawyer pulling a parcel register to confirm the owner on title and nature of ownership.
• Government Issued ID: Valid identification documents are required for verification purposes. 

Benefits of Using Survivorship Applications

Simplifies Property Transfer: A Survivorship Application allows for the transfer of ownership to the surviving joint tenant without the need for probate, reducing legal complexities.

Avoids Estate Administration Delays: Since joint tenancy includes the right of survivorship, the deceased’s share passes automatically, avoiding the delays associated with estate administration.

Minimizes Costs: Filing a Survivorship Application is typically faster and more cost-effective than probate, helping to avoid additional legal and court fees.

Ensures Clear Title: Updating the property title promptly prevents future complications, ensuring the surviving owner has undisputed legal ownership.

Preserves Property Rights: By removing the deceased’s name from the title, the surviving owner gains full control, allowing them to sell, refinance, or transfer the property as needed.

Summary

Insight Law Professional Corporation is dedicated to helping clients with Survivorship Applications. If you need assistance from a real estate lawyer, contact us today and see how we can help you.

The information provided above is general and should not be considered legal advice. Every transaction or circumstance is unique, and obtaining specific legal advice is necessary to address your requirements. Therefore, if you have any legal questions, it is recommended that you consult with a lawyer.