What Happens to Real Property Upon Death?

Author: Allison Rudzitis

When two or more people own real property together, ownership of that property can take the form of either tenancy in common or joint tenancy. In the tenancy in common scenario, two or more people hold title to the real property in a manner by which each is entitled to occupy the entire property but each may also dispose of his or her interest independently of the other. Tenants in common are able to hold different portions of the property (i.e. it does not have to be equal. If one of the tenants in common dies, the deceased's interest forms part of his or her estate upon death, and is subject to probate.

Property held by way of joint tenancy means that each person has an undivided interest in the land with equal rights to possession and equal title acquired by the conveyance. A major distinguishing feature of joint tenancy is that, unlike tenancy in common, the right of survivorship applies. This means that upon the death of one joint owner, the land as a whole vests with the survivor(s), and can only be disposed of by will of the last surviving owner. In this circumstance, real property does not form part of the estate and is not subject to probate fees.

The process for transferring property upon the death of a joint tenant is easy and straightforward. A statutory declaration must be signed by the surviving joint tenant attesting to the fact that the other joint tenant has passed away. This statutory declaration must be accompanied by a death certificate (either an original or notarized copy) confirming the death of the deceased joint tenant. These documents are then submitted to Land Titles, and a new title is issued describing the name(s) of the surviving joint tenants.

Both types of land ownership are appropriate for different reasons. It is important to consult with a lawyer when determining how land will be held, so that your specific circumstances can be ascertained and the ideal form of land ownership is determined.