Survivorship Applications
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Our Survivorship Applications are prepared by our Lawyers and are available in our Walk-in Location and select Locations only.
Brief Definition
In Ontario, there are two ways in which you can take title to a property if you are purchasing with two or more individuals. Title to a property (home, house, townhouse, condo, etc.) can be taken as Joint Tenants or Tenants in Common. Depending on how the title is transferred to the parties, where a home is jointly owned by two people, whether as a result of marriage, common law union, or any other form of relationship, and one of them dies, the surviving spouse or partner will most likely become the sole owner of the home through the operation of a legal principled called “Right of Survivorship” if the four unities are present. Our Lawyers can prepare and register a Survivorship Application for you in order to remove the name of your deceased spouse or family member as well as the name of a living family member who needs to be removed from title voluntarily.
Notwithstanding that the surviving spouse or partner has the Right of Survivorship, he or she is still required to formally remove the name of the deceased spouse or partner from the title to thehome so that future dealings with members of the public, government agencies and businessescan proceed without undue interruption. Well, this is simple to imagine. The fact that one of the spouse or partner is dead does not mean that all members of the public, government agencies and the business community are aware of it. Hence, the surviving spouse will continue to encounter delays in their future dealings respecting the home until the name of the late spouse or partner is removed.
Notarizers can prepare and register the Survivorship Application for you. We require a copy of your deed and an original death certificate for the deceased person. If you do not have a copy of the original death certificate, then request a letter from the funeral home that handled the burial.
Joint Tenants
In Ontario, Joint tenancy (or more formally ‘joint tenants with a right of survivorship’) is the most common type of home ownership as it offers more flexibility to married couples.
In a joint tenancy, if one joint tenant dies, they cease to be an owner, and the remaining joint tenant continues as the owner without any interruption. Although in reality, there can be more than 2 joint tenants, the most typical form of joint tenants are usually 2, mostly spouses.
Joint Tenancy is survivable. This means that at the death of one of the Joint Tenants, the tenancy is passed to the surviving owner(s). This is particularly useful when the home is placed in tenancy between spouses. When one of the spouses dies, ownership will immediately transfer to the surviving spouse.
It is important to bear in mind that the ownership of the property is ‘transferred’ on the death of the surviving joint tenant. Hence, the first owner to die ‘drops off the title’ and leaves the surviving owner still on title. As a result, a property owned by joint tenants does not fall into the estate of the first spouse to die and the Will of the late owner will not deal with the property; and the property does not require probate and is not included in the calculation of Estate Administration Tax when the estate of the first late joint tenant is being probated.
If the two joint tenants die at the same time, for instance in an automobile accident, the joint tenancy will automatically change and each joint tenant will be treated as a tenant-in-common.
Severance of Joint Tenancies
A joint tenant can unilaterally convert a joint tenancy to a tenancy-in-common. This is called ‘severing the joint tenancy’. In this regard, the consent of the other joint tenant is not necessarily required. The title to a property held by two former spouses can be severed by one without a divorce or family law proceedings.
When joint tenants have separated as a couple, each can dispose of their one-half of the property to their heirs rather than the house passing 100% to the surviving spouse (and the surviving spouse’s heirs). It is very crucial that when homeowners end their spousal relationship their joint tenancy should be severed.
An interesting caveat to note in Joint Tenancy is the treatment of matrimonial homes. Matrimonial homes are deemed by the law to be a home that was purchased by spouses during the existence of the marriage. If the late spouse held a joint tenancy with another person who was not the spouse, at the death of the deceased, the tenancy is been severed immediately before the death, thereby creating a tenants-in-common relationship. This relationship survives the deceased and extends to the estate of the deceased, which gives the deceased’s spouse claim to a portion of the matrimonial home.
It is important to note that the severance of a joint tenancy requires a clear and unequivocal action to sever the joint tenancy. The separation of a couple without more is not enough to sever the couple’s ownership of their house. The most efficient way to sever a joint tenancy is to have the severance registered on title to the property. Anything short of registering the severance on title to the property is difficult to prove in court.
If two joint tenants die at the same time, the joint tenancy is automatically severed, and each is treated as a tenant-in-common.
Tenants-in-Common
Properties may be owned by two or more people (including corporations) as ‘tenants-in-common’. When property is transferred to the owners as tenants-in-common, each property owner has a DIVIDED percentage interest in the ownership of the property. If the percentage of each owner is not specifically stated, it is deemed to be equal for each tenant-in-common, that is 50% for each.
When a tenant-in-common dies, their share of the property does pass in to their estate and must be dealt with pursuant to the rules (Will or Intestacy (without a Will)) applicable to their estate.
For disputations relating to both probate and estate, it is very difficult to determine the value of a tenant-in-common’s share of the property. Some pressing issues will be to determine the percentage of the interest vis-à-vis the fair market value of the property, in addition to determining the real estate commission and other expenses, possible income tax considerations in the event that the property was not a principal residence of all tenants-in-common.
The Difference Between Joint Tenancy and Tenants in Common
In Joint Tenancy, each owner has an undivided share of the property. On the other hand, in Tenants in Common, each owner to has a divided, or fractional share of the property.
An easy way to understand this is to think of a pizza. While on the table and in the box, the pizza can be considered owned or wholly belonging to those sitting around it (Joint Tenancy). However, when an individual takes slices from the pizza and divides them by allocating them to plates, the pizza is fractionally owned by each person at the table (Tenants-in-Common).
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94 Via Bagnato, Toronto, Ontario, M6A 2S1 CANADA
(Located Across the Playground Behind Shoppers Drug Mart at 770 Lawrence Ave W)(The Road that leads to Shoppers Drug Mart at 770 Lawrence Ave W is called Via Bagnato)
(We are in one of the Commercial Units of the Treviso 3 Condo at 3091 Dufferin Street. The Road at the
Back of the Condos is Called Via Bagnato. Please Drive in or Walk in Through the Shoppers Drug Mart
road at 770 Lawrence Avenue W)
Tel:416-782-5926 Fax: 416-782-2286, Email: Info@Notarizers.ca
