Survivorship Applications: Ontario Guide

What is a Survivorship Application?

Survivorship Applications play an important role in Ontario real estate law, particularly for co-owners.

They're used when one co-owner passes away, offering a streamlined process for transferring property ownership to the surviving owner(s).

Survivorship Applications are only applicable when co-owners own the property as Joint Tenants, meaning a right of survivorship exists.

The parcel register shows who is on title before the application is registered.

Who can apply for a Survivorship Application?

Survivorship Applications are only applicable when co-owners own the property as Joint Tenants. This procedure is not available when property is held as Tenants in Common.

If a survivorship application is available, the surviving joint owner(s) can apply for it by registering the document on the property title to amend the ownership and reflect the current status.

How to file a Survivorship Application

The survivorship application process starts with hiring a Toronto real estate lawyer who deals with real estate transactions.

The original death certificate and ID go to the lawyer, who prepares the application for registration.

A signing meeting is scheduled and the lawyer will review and sign all the respective documents with the applicant.

Depending on your preference this can be done in-person or virtually.

Joint Tenants vs Tenants in Common

How you own property in Ontario impacts what happens to it when you or another owner passes away. In Ontario, there are two main ways to own property: Joint Tenancy or Tenancy in Common. The two ways of holding title:

The words sit on the deed. After a death, if the later sale is the first dealing since Land Titles conversion, the First Dealings Exemption can still keep Estate Administration Tax off that sale.

• Joint Tenancy (Joint Tenants)
  • Each owner (two or more) has an equal and undivided interest in the property
  • Each owner has equal rights to use and enjoy the property
  • Can be severed if one joint tenant sells or transfers their interest, converting it into a tenancy in common.
  • If one joint tenant passes away, their share automatically transfers to the surviving joint tenant(s), typically outside of probate, avoiding delays and costs associated with the probate process (survivorship rights)
  • The right of survivorship ensures that the property automatically passes to the surviving joint tenant(s) upon death, regardless of any conflicting instructions in a will
• Tenancy in Common (Tenants in Common)
  • Ownership shares can be unequal, and each owner holds a distinct percentage share of the property
  • If one tenant in common passes away, their share of the property becomes part of their estate for distribution according to their will or the laws of intestacy.
  • There is no automatic right of survivorship in tenancy in common; the deceased owner's share does not automatically transfer to the surviving co-owners.

Matrimonial Properties

If matrimonial property is owned as joint tenants, the surviving spouse automatically inherits the deceased spouse's share through the right of survivorship.

When one spouse isn't listed on the title of a matrimonial property while the other spouse holds joint tenancy with a third party (parent or friend etc.) the joint tenancy between the third party and the deceased spouse is automatically severed upon the death of the latter.

Benefits of Using Survivorship Applications

• Probate Avoidance: Bypass the probate process, saving time, money, and avoiding court proceedings.
• Efficiency: The process is streamlined, skipping the complexities of probate and enabling quick property ownership transfer with minimal formalities.
• Continuity: Ownership is smoothly transferred from the deceased to the survivor(s), ensuring uninterrupted asset management without requiring a court-appointed executor.
• Cost Savings: Reduce fees of legal services, court expenses, and other probate-related costs.
• Privacy: Unlike probate, survivorship applications are private, maintaining confidentiality as ownership changes hands outside of public scrutiny.

Documentation Required for Survivorship Applications

Survivorship Application is the legal instrument that is officially recorded with the land registry office.

Once registered, the document is publicly available, ensuring legal clarity and confirming ownership or interests in property or assets.

What will the lawyer need to prepare a survivorship application?

• Death Certificate: The official document confirming someone's death issued by a government authority.
• ID: Valid identification documents required for verification purposes. These documents are used to confirm identity and ensure legal compliance for the transaction. Examples include driver's license, passport, or government-issued ID card.
• Proof of Spousal Status: Official documentation verifying one's marital status. Examples include marriage certificate, domestic partnership registration, or divorce decree.

Limitations of Survivorship Applications

While survivorship applications offer numerous benefits, they are not suitable for every situation. Some limitations to consider include:

1. Sole Ownership: Survivorship applications only apply to jointly held assets. If the deceased individual is a sole owner, a different legal process, such as probate or establishing a trust, may be necessary to transfer those assets.
2. Disputes: In cases where there are disputes among the joint owners or potential legal challenges to the transfer of ownership, a survivorship application may not provide adequate protection. In such situations, seeking legal advice from experienced lawyers would be advisable.

Frequently Asked Questions (FAQ)