Real Property can be held in different ways, the main two types of ownership are joint tenancy and tenancy in common.
- Joint tenancy is a type of ownership that comes with the benefit of the right of survivorship. This means where two people own property as joint tenants upon the death of the first joint owner, the property becomes wholly owned by the survivor.
- The transfer of transfer of title from the two joint owners (in the case of property owned by two people) should not require any court process.
- Property owned in joint tenancy generally by-passes the estate the first joint owner to die, and become property of the surviving joint owner(s).
- It should not be necessary to obtain a Certificate of Appointment of Estate Trustee (the court order that used to be called Letters Probate) to transfer the property.
- There will be no Estate Administration Tax payable on the value of the property being transferred when it passes outside the court process.
Tenancy in Common
- Tenancy in Common is a type of ownership that does not have the benefit of a right of survivorship.
- In order to transfer the property on the death of one of the owners, an Estate Trustee needs to obtain a Certificate of Appointment of Estate Trustee (the court order that used to be called Letters Probate) to transfer the property.
- If the first tenant in common to die has a Will, the property can be distributed to heirs of the owner’s choosing. If the first tenant in common to die does not have a Will, for property located in Ontario, the property will be distributed according to the rules under Succession Law Reform Act, R.S.O. 1990, c.s. 26, for intestate succession.
- There will be Estate Administration Tax payable on the value of the property being transferred less the value of any mortgages registered against the interest of the deceased as it will have to pass through the owner’s Estate.
Please note that the ownership of property and the transfer of property upon death can be complex. The above is intended to provide some general information to assist you in understanding how the type of ownership you have can affect your estate plan, however, individual circumstances and other factors can also be relevant. For advice particular to your circumstances you should consult a lawyer.