Joint Owner Died? Why the Survivor Still Needs a Survivorship Application in Ontario

Survivorship can pass the home the moment a co-owner dies. The land register changes only when someone applies — and the way the owners are described on it decides which route applies.

I’m Arthur Zhao.
A few days after a funeral, someone in the family may go looking for the folder from the day the house was bought — the papers from the closing that nobody has opened in years. Somewhere in there, or on the parcel register itself, is a short phrase describing how the owners hold title: “joint tenants,” “tenants in common,” occasionally something less familiar. It is easy to skim past. It shouldn’t be. That phrase, together with one fact about the person who died — whether they were married, and to whom — decides whether the home has already passed to the survivor or now belongs, in part, to an estate. It also decides what Land Registry has to be told before the record catches up.
Below I take five ways the register can read and, for each one, answer two questions: on the day of death, where does the ownership go, and what has to change on the register afterwards?

Scenario 1: Two spouses registered as joint tenants

On the day one spouse dies, the deceased’s interest passes to the surviving spouse by right of survivorship. It does not wait for the will, and the executor does not hand it out. Land Titles Act s.123 describes exactly this situation — joint tenants, one has died, and “it appears from the parcel register that the interest of the deceased owner has passed by right of survivorship to the surviving owner” — and then says what happens next: the land registrar may delete the deceased’s name upon receipt of an application containing the evidence specified by the Director of Titles.

So the ownership moves on its own; the record does not. That is the whole reason a survivorship application exists.

What goes into it is set by the Director of Titles. According to Director of Titles Bulletin 2000-6 (2000), one accepted way is a set of statements: that the applicant held the property as a joint tenant with the deceased; that by right of survivorship the applicant is entitled to be the owner as surviving joint tenant; and the date of death. Because the person who died was married, the application also carries a Family Law Act statement — in this scenario, that the deceased and the surviving joint tenant were spouses of each other when the deceased died. The bulletin says these statements “can only be made by a solicitor,” and the solicitor must sign them. The same bulletin also keeps the older route of filing the evidence in the forms prescribed by regulation.

For proof of death, Director of Titles Bulletin 93006 confirms that a statement issued by a funeral director, or by an authorized official of a Transfer Services Establishment, is acceptable in support of a survivorship application.

Scenario 2: A married owner held the family home jointly with someone other than their spouse

One version: a parent is on title as a joint tenant with an adult child, the parent’s husband or wife is not on title at all, and the house is where the parent and that spouse live. This is where the survivorship assumption breaks.

Family Law Act s.26(1): “If a spouse dies owning an interest in a matrimonial home as a joint tenant with a third person and not with the other spouse, the joint tenancy shall be deemed to have been severed immediately before the time of death.”

Two definitions decide whether you are inside that sentence. For this part of the Act, “spouse” means two people who are married to each other (s.1(1)) — the longer cohabitation definition in the Act belongs to the support provisions, not here. And a matrimonial home is property in which a person has an interest that is ordinarily occupied by that person and their spouse as their family residence (s.18(1)).

Because the joint tenancy is treated as severed just before death, survivorship has nothing left to operate on. My reading of the practical effect — an inference from what severance means, not a sentence in the Act — is that the deceased’s share is then dealt with through the estate rather than passing to the child on title.

This is why Bulletin 2000-6 requires every survivorship application for a death on or after March 1, 1986 to carry one of three Family Law Act statements: the deceased and the surviving joint tenant were spouses; the deceased was not a spouse at death; or the property was not the deceased’s matrimonial home. On the facts of this scenario none of the three is true, which — again my inference — means the ordinary s.123 route does not fit, and the file needs a lawyer to work out how the estate’s share is registered.

One more rule applies here. Under s.26(2), a spouse who has no interest in the matrimonial home but is living in it when the other spouse dies may stay, rent-free, against the estate for 60 days after the death.

Scenario 3: The owners are tenants in common

There is no survivorship here. Each owner holds a separate share, and Land Titles Act s.122 says that when one dies, “his or her personal representative, or such other person as is entitled to the share of the deceased, may be entered as owner with the survivor or survivors.”

Put plainly, the deceased’s share follows their estate, not the co-owner. The surviving co-owner keeps exactly the share they already had. On a plain reading of s.122, the change on the register is made in the name of whoever is entitled to the deceased’s share — so the surviving co-owner cannot simply apply to have the other name removed and take the whole property.

Scenario 4: The register carries a “No Survivorship” entry

Where this entry appears, it sits on top of whatever co-ownership the register shows. Land Titles Act s.65(1) allows an entry to be made, with the owners’ consent, that once the number of owners falls below a specified number, no registered disposition of the land can be made except under an order of the court. Under s.65(2), the words “No Survivorship” in that entry mean that if any one of the owners dies, no registered disposition of the land shall be made except under order of the court.

In other words, the survivorship application is not the path to a sale or a new mortgage on this property. A court order is. That is a conversation to have with a lawyer early, not something to discover when a buyer’s lawyer runs the title search.

Scenario 5: The last surviving joint owner dies

When the sole registered owner, or the last survivor of several joint owners of freehold land, dies, Land Titles Act s.120 has the land registrar appoint who will be registered in their place, on the application of any person interested in the land. From that point the question belongs to the estate, not to survivorship.

Before you call a real estate lawyer

These are the facts that place you in one of the five scenarios above: