What is a Survivorship Application?
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. This legal tool is 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.
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“. Their 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.
These differences have significant implications for estate planning and property management. 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 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
Summary
Insight Law Professional Corporation is dedicated to helping clients with Survivorship Applications. If you need assistance from a Toronto 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.
