Transferring the House After a Joint Owner Dies in BC

After the death of a spouse, partner or parent, the house is often the first legal question. If the two of you owned it as joint tenants, the property generally passes to you automatically, outside the will and outside probate.

Automatic does not mean the paperwork takes care of itself. The land title record still shows the deceased as an owner until you apply to change it, and there are a few situations where survivorship is only the start of the conversation.

Start with the title: joint tenants or tenants in common?

Everything turns on how the property is registered. When two or more people take title as joint tenants, the Land Title Act requires the registrar to add the words "joint tenants" after their names on the title. If those words are missing, the owners are usually tenants in common, each holding a separate share.

The difference matters on a death:

• Joint tenancy. The deceased owner's interest ends at death and the surviving owner or owners hold the whole property. This is called the right of survivorship. The property does not pass under the will.
• Tenancy in common. The deceased owner's share forms part of their estate. It passes under the will, or under the intestacy rules if there is no will, and the executor or administrator usually needs a grant from the court before dealing with it.

If you are not sure which applies, a current title search will show it. Our article on whether an estate needs probate in BC explains how the way each asset is owned decides whether a grant is needed.

What survivorship does, and what it does not do

Survivorship decides who owns the property at law. It does not remove the deceased's name from the title on its own, and it does not change anything else registered against the property. A mortgage, line of credit or other charge stays on title, and the surviving owner should contact the lender early.

Until the title is updated, you may not be able to sell or refinance the property in your own name alone. The Land Title Act generally requires a transmission to be registered before the property can be dealt with further, so this is usually the first step, not a formality that can wait for years.

How to transfer title to the surviving joint tenant

The application is made to the Land Title and Survey Authority of British Columbia (LTSA). Under section 269 of the Land Title Act, the registrar will not deal with an application to register a transmission after the death of a joint tenant unless a certified copy of the grant of probate or administration, or a death certificate, is filed. In most cases, the survivor uses the death certificate.

What the LTSA asks for

The LTSA's guidance for surviving joint tenants says:

• Original documents only. It accepts an original death certificate or grant of probate, not photocopies or notarized copies, and it does not accept a funeral director's certificate.
• Online filing for many owners. Where the owners are individuals holding as joint tenants, many survivors can apply online, verifying identity through the BC Services Card app. Some people will need to file another way.
• Name differences. If names do not match across documents, a statutory declaration may be needed, sworn before a lawyer, notary public or commissioner.
• Corporate or trust owners. If an owner on title is a corporation, a trustee or a partner in a limited partnership, the LTSA directs you to a legal professional.

The LTSA charges registration and filing fees, and the application includes a transparency declaration and a property transfer tax return.

Property transfer tax and other loose ends

A transfer by operation of law to the survivor of a joint tenancy, on the death of a joint tenant, is listed as exempt in section 14(3)(m) of the Property Transfer Tax Act. The LTSA says the return filed with the application claims this exemption, so in the ordinary case no property transfer tax is payable on the survivorship transfer.

Once title is in your name, work through the practical list:

• Mortgage. Confirm with the lender how the loan will continue, and whether any mortgage life insurance applies.
• Home insurance. Tell the insurer about the change in ownership and occupancy.
• Property tax and utilities. Update the accounts so notices reach you.
• Income tax. The deceased's final return may need to deal with their interest in the property. Speak with an accountant about how this applies to your situation.

When survivorship is not the end of the story

Most spousal joint tenancies are exactly what they look like. Problems tend to arise in a few situations.

A parent added an adult child to title

When a parent adds an adult child to title without payment, the Supreme Court of Canada has held that the law generally presumes the child holds the parent's interest for the parent's estate, unless the evidence shows the parent meant to give the child the right of survivorship. If siblings disagree about what the parent intended, the house can end up in a dispute despite being registered in joint tenancy. Our article on adding an adult child to title covers these risks in more detail.

The joint tenancy may have been severed

A joint tenancy can sometimes be converted into a tenancy in common before death, for example by a registered transfer. If that happened, the deceased's share goes to the estate instead of the survivor. Check the title history if there is any doubt.

Separated owners

If the owners had separated, family property rights and survivorship can both be in play. Get advice before filing anything in that situation.

After the transfer: look at your own plans

Once the house is in your sole name, your own will and estate plan may no longer do what you want. A will that left everything to the person who has died, or that relied on the house passing by survivorship, should be reviewed. Our guide on when to update your will in BC lists the events that should prompt a review.

Need the title updated after a death? Start with the paperwork

Our probate and estate lawyers can confirm how the property is held, prepare and file the survivorship application, and advise on any estate or family questions that come with it.

Call 604-259-2844 or send us a message to arrange a consultation at our Vancouver office.