Balance Magazine

A common question we receive at Nungisa Law is: “My spouse and I owned property as joint tenants, but my spouse has recently passed away without a will. Can I apply for a survivorship application without a Certificate of Estate Trustee?” If you’re navigating a similar situation, this guide is for you.

In Ontario, when a property is held in joint tenancy, the right of survivorship allows the surviving joint tenant to automatically inherit the deceased’s share of the property. This process is relatively straightforward and does not require probate or a Certificate of Estate Trustee. Let’s walk you through the key steps and considerations.

What Is a Survivorship Application?

A Survivorship Application is a formal process to update property records in the Ontario Land Registry after the death of a joint tenant. By filing this application, the deceased’s name is removed from the title, and the surviving joint tenant becomes the sole property owner.

Do You Need a Certificate of Estate Trustee Without a Will?

In cases where the property is held in joint tenancy, the answer is no. Since the property passes automatically to the surviving joint tenant, there’s no need for probate or a Certificate of Estate Trustee. The survivorship process is designed to bypass probate for joint tenancy arrangements.

Step-by-Step Guide to Filing a Survivorship Application

Here’s how to apply for a Survivorship Application in Ontario:

1. Complete Form 12: Application by Survivor

This is the key form required for the application. It confirms your intent to remove the deceased’s name from the property title and asserts your status as the surviving joint tenant.

2. Provide Proof of Death

You will need to submit a certified copy of the death certificate issued by the provincial government or a certificate of death provided by the funeral home.

3. Submit a Statutory Declaration

A statutory declaration is required to:

• Confirm the existence of the joint tenancy.
• State that the deceased named on the death certificate is the same person listed on the title.
• Declare that the joint tenancy was not severed prior to the deceased’s passing.

4. Gather Property Information

Ensure you have the PIN (Property Identification Number), address, and legal description of the property ready for the application.

5. Pay the Applicable Fees

Check the Land Registry Office’s fee schedule for the current application cost and ensure payment is included with your submission.

6. Submit Your Application

You can submit the application:

• Electronically through the Teraview system (used by many legal professionals).
• In person at the local Land Registry Office.

Key Considerations

• Joint Tenancy vs. Tenancy in Common: This process applies only to joint tenants. If the property was held as tenants in common, survivorship rights do not apply, and probate may be necessary.
• Severance of Joint Tenancy: Ensure that the joint tenancy was not severed before the deceased’s passing (e.g., through legal actions or separation). If severance occurred, the survivorship process may not be applicable.
• Disputes or Claims: If disputes arise, such as claims from creditors or other family members, consult with a real estate lawyer to ensure proper handling.

Why Work with a Lawyer?

While the process may seem straightforward, errors in documentation or failure to address legal nuances can cause delays. A real estate lawyer can:

• Ensure all forms and declarations are properly prepared.
• Identify and resolve potential issues, such as title disputes or unclear ownership structures.
• Guide you through the electronic submission process via Teraview, if applicable.

Final Thoughts

If you are the surviving joint tenant of a property and your co-owner has passed away, applying for a survivorship application can be a stress-free process—as long as you follow the proper steps. At Nungisa Law, we’re here to help guide you through every stage, ensuring your rights as the surviving joint tenant are protected.

Have questions about your specific situation? Contact us today to book a consultation and let us simplify the process for you.