This page is about joint ownership of assets (houses and savings) for probate and estate disputes
For information on ‘beneficiary designations’ click here.
For information about joint ownership in estate planning click here.
Joint ownership with a right of survivorship is not the same as ownership by tenants-in-common: the difference is explained here
General principles
When a property is owned by two or more owners as ‘joint tenants with a right of survivorship’, title to the property does not ‘pass’ on the death of a co-owner. The deceased co-owner simply ‘drops off title’ and the surviving co-owner(s) remain on title.
For real estate in Ontario, this change in ownership is registered by registering a ‘deed of transmission’, which requires little more than an original or notarized copy of the death certificate.
As a general rule, if a co-owner ‘goes bankrupt’ before they die, then their ‘share’ of the property is included in their assets – and this share must be ‘sold’ (to the co-owner(s) or third parties) to pay debts of the bankrupt. However, if the co-owner dies and is not yet bankrupt but has debts, generally their debts do NOT remain against the property which they are no longer an owner of.
Joint with an adult child
The law presumes that a financially independent adult child who co-owns an asset with their parent holds it in trust for the parent’s estate. It applies to real estate and unregistered savings and investments. (It likely does not apply to plans with designated beneficiaries.)
This presumption is rebuttable. It is still possible for the adult child to prove that the deceased intended to give the property exclusively to that adult child, but the onus of proving this gift on a balance of probabilities rests on the adult child. Generally, clear and compelling evidence in writing or from third parties other than the adult child will be required to meet this burden (a simple oral statement from the joint child owner is unlikely to be sufficient).
In summary, on the death of the parent, real estate and bank accounts jointly held with an adult child do not automatically pass to the child who is the joint owner, and likely should be disclosed in the probate application (EAT paid accordingly) and distributed among the beneficiaries of the estate.
If you are affected by a joint tenancy claim by an adult child of the deceased
If an adult child claims joint ownership of assets with their deceased parent, the estate will be reduced. Sometimes the reduction is dramatic (especially with houses and large savings accounts).
The key for all parties is documentation (letters, emails, bank documents, etc.) –
- did the parent document an intention to gift the asset?
- what is the asset, where is it located, and how much is it worth?
- when was the joint tenancy established?
- did the deceased receive legal advice at the time?
- did the deceased consider the joint ownership when making their will?
- has the adult child joint owner refused to treat the asset as an estate asset?
The more documentation, the quicker and easier it is for us (and a Court) to address the issue.
These disputes are usually best handled by commencing an “Application for Directions” asking the Court for a ruling on whether the jointly owned asset is held in trust by the adult child for the benefit of the beneficiaries of the estate of the deceased parent. Learn more about Applications here.
We have considerable experience assisting with these circumstances by commencing court proceedings to force resolution as quickly as possible, including conducting a number of these cases ‘on success’ (contingency).
Please contact us for a consultation on your circumstances.
