We understand how heartbreak losing a loved one is - and having to figure out what to do with their property afterwards can feel overwhelming.

In Ontario, transferring a loved one's property is not just about paperwork; it's a journey through legal procedures and details.

For many, this is unfamiliar territory, filled with questions: What are property titles? What's the difference between Joint Tenancy and Tenancy in Common? How does the presence (or absence) of a will affect the process?

In this blog post, we'll answer these questions and more, providing a step-by-step guide on how to transfer the property of the deceased in Ontario, whether they had a will or not.

Let's dive in and simplify this process together.

Property titles are legal documents that establish ownership rights and interests in real estate. These titles indicate the legal owner of a property, which may include parents, spouses, investors, or corporations.

The type of title in which the property is held, and the individuals named as owners dictate the process and requirements for a property transfer, especially if multiple individuals are listed as owners.

In Ontario, there are two types of property titles, both of which have implications for property transfers after death and affect who inherits the property and how.

Joint Tenancy

Joint Tenancy is a title where two or more individuals hold the title to a property. If one co-owner passes away, their share or ownership directly transfers to the other holder. The remaining co-owner holds this right of survivorship under this title. The transfer process continues until only one holder remains. For example, if the property ownership values 100%, then two co-owners each hold 50% of the title, and upon one co-owner's death, the other holds 100%.

Tenancy in Common

Tenancy in Common is a title where more than one individual holds the title to a property. When a co-owner passes away, their portion remains as a distinct property share that can be transferred to a chosen beneficiary and is not automatically transferred to the remaining co-owner(s). In this case, percentages can vary according to individual holders, highlighting the importance of understanding the title because it affects transfers after death.

A will that specifies how this portion should be transferred becomes crucial. In the case of Tenancy in Common, percentages are not divided equally but are entirely dependent on each holder's investment. For example, one co-owner might hold 70% while another holds 30%. Tenancy in Common is a more intricate process during property transfer because each not only carries a different value but can also be transferred to a chosen beneficiary.

In order to transfer property, authority must be obtained through probate. Probate validates the will, recognizes the individual responsible for executing the will, known as the estate trustee or executor - and grants the authority to the executor to distribute the deceased assets.

After successful application for probate and authority is granted to the trustee and successful application for probate, a Certificate of Appointment Trustee is issued.

Probate is needed for the majority of cases of property transfer in Ontario. It is also necessary if there is no will, designated trustee, or if there is a dispute regarding who is an appointed trustee. In Ontario, in the event that a deceased is registered as a Joint Tenant (NOT Tenants in Common) on a title, probate is not necessary to transfer ownership as it is obtained through a Survivorship Application completed by a real estate attorney. The process removes the deceased person's name from the property title.

When There Is a Will

In the presence of a Last Will and Testament, the process to transfer property in Ontario involves the following steps:

• Probate Application: The named executor or trustee in the will is responsible for initiating the probate process. This validates the will and officially recognizes the executor's authority.

• Obtain Certificate of Appointment of Estate Trustee with a Will: Upon successful probate application, a Certificate of Appointment Trustee is issued, granting the executor the authority to distribute the deceased's assets according to the will's provisions.

• Compile Required Documents: To apply for probate, the executor must provide the Last Will and Testament, death certificate, and any other documents highlighting changes or codicils to the original will.

• Property Transfer: If the deceased was registered as a Joint Tenant, and not as Tenants in Common, probate might not be necessary. A Survivorship Application, typically prepared by a real estate attorney, can be used to transfer ownership and remove the deceased's name from the property title.

When There Isn't a Will

If the deceased did not leave behind a Last Will and Testament, the property transfer process becomes slightly different:

• Determination of Administrator: Without a will, there isn't a named executor. Instead, an individual, typically determined by next-of-kin status, will need to step forward to act as the estate administrator. In Ontario, the hierarchy typically starts with a spouse, then children, followed by other close relatives.

• Obtaining a Certificate of Appointment of Estate Trustee Without a Will: The prospective estate administrator must apply for this certificate. This certificate is akin to probate for those with a will, and it grants the authority for the estate trustee to manage and distribute the deceased's assets according to Ontario's intestacy laws.

• Requirement of a Bond: In many cases, the estate trustee may be required to post a bond unless all beneficiaries waive the requirement. This bond acts as a form of insurance to protect the interests of beneficiaries, ensuring the trustee manages and distributes the estate properly. The bond amount usually corresponds to the value of the estate.

• Distribution of Assets: Without a will dictating the allocation of assets, the estate trustee will distribute the estate according to the rules outlined in Ontario’s Succession Law Reform Act. As mentioned previously, this means assets will generally go to the closest living relatives, following a specific order

Obtaining legal authority can be a challenging and time-consuming process, especially when dealing with complex estates or disputes among beneficiaries. Seeking legal counsel is advisable to navigate potential hurdles and ensure compliance with Ontario's estate laws. Legal professionals can provide guidance on fulfilling the Estate Trustee's responsibilities and preparing the necessary documents for probate application.

Step 1: Gather Documents and Identify the Trustee

Locate a will and identify the deceased’s wishes including any named trustees, if property is included in the estate, who is named as beneficiaries if there are any, and other financial records. Valuing the Estate will determine the financial value of the estate prior to probate and will ensure the trustee has complete understanding of the deceased’s financial situation and avoid any unforeseen consequences or complications.

Step 2: Initiate the Probate Process or Joint Tenancy Survivorship

If required, initiate the probate process to obtain legal authority over the estate. This step is essential for validating the will and gaining the legal right to transfer property. Along with providing the necessary paperwork you will need to calculate the necessary taxes, paid upon submission of the application. You must also provide a copy of the application to any beneficiaries before it is submitted.

Documents Required for Application:

• Proof of Death
• A Last Will and Testament
• Any amendments or supplemental information regarding the will
• Court Forms

If the property transfer occurs through Survivorship then a real estate lawyer can prepare the necessary survivorship application documents. These documents will remove the deceased's name from the property title, leaving the surviving owner as the sole holder. Once legal authority is granted through probate or Joint Tenants with right of survivorship, the process of transferring property can begin.

Step 3: Notify Relevant Parties and Assess Financial Obligations

Notify all relevant parties of the death, including financial institutions, government authorities, and any co-owners of the property. This step ensures that accounts are appropriately frozen or transferred as needed. During this step you can also determine and address any outstanding financial obligations related to the property, such as mortgages, property taxes, and other debts. These obligations must be settled to facilitate the property transfer.

Step 4: Transfer Title with the Land Titles Office

With or without survivorship applications, the executor or surviving co-owner will need to initiate the transfer of title with the Land Titles Office. This involves completing the required forms and paying any associated fees.

Step 5: Finalize the Property Transfer

Once all legal requirements are met and the property transfer is complete, update the property title to reflect the new ownership status. This ensures that the property is now officially owned by the designated beneficiaries or surviving co-owner(s).

Transferring property after death in Ontario involves various costs. One notable expense is the estate administration tax, often called probate fees. The amount of this tax is calculated based on the estate's total value and varies depending on the jurisdiction. Other potential fees include legal fees, land transfer taxes, and valuation fees. Understanding these costs is essential for effective estate planning and budgeting.

Estate Administration Tax (Probate Fees)

One of the primary costs associated with property transfer after death in Ontario is the estate administration tax, often referred to as probate fees. This tax is calculated based on the total value of the deceased's estate. In Ontario, the probate fees are governed by the Estate Administration Tax, which, although are paid by the estate, is the trustee's responsibility to ensure payment.

The tax rates vary depending on the estate's value.

- Up to $50,000: Zero dollars

- Over $50,000: $15 per $1,000 of estate value (The maximum estate administration tax payable is 1.5% of the estate's value)

Legal Fees

Legal fees are another significant cost in the property transfer process. Executors or individuals responsible for the property transfer often hire a real estate lawyer or solicitor to assist with the legal aspects of the transfer. Legal fees can vary depending on the complexity of the case, the attorney's rates, and the services required. It's essential to obtain a clear fee agreement upfront.

Disbursements are expenses incurred by your lawyer or legal representative during the property transfer process. These can include fees for searches, registrations, and document preparation.

Land Transfer Tax

When transferring property in Ontario, the beneficiary owes a land transfer tax, which is typically calculated based on the property’s value.

Valuation Fees

In some cases, an appraisal or property valuation may be necessary to determine the property's fair market value for tax purposes. Valuation fees vary based on the complexity and location of the property.

Title Transfer Fees

The Land Titles Office charges fees for transferring the title of the property. These fees cover the administrative costs of updating the official property records.

Property-related Costs

Depending on the property's condition and any outstanding obligations, costs may be associated with repairs, maintenance, or settling outstanding debts such as property taxes, mortgages, or utility bills.

It's important to note that fees and taxes may change over time, so it's advisable to check with the relevant authorities or consult legal professionals for the most up-to-date information. Executors and individuals responsible for property transfer should carefully budget for these expenses and seek legal guidance to ensure compliance with all legal requirements.

Ensuring Your Loved One's Wishes are Honoured

Understanding property titles, wills, probate, and the myriad of procedures in Ontario requires not just effort but also patience, and expertise.

It's not just about moving from one legal point to another, but about ensuring the wishes and legacy of your loved ones are carried out seamlessly and with respect.

If you're feeling overwhelmed or uncertain about how to proceed, you're not alone. Our team is here to guide and support you every step of the way.

To ensure you navigate this process with clarity and confidence, we invite you to book a free consultation with us. Together, we'll ensure your loved one's property is transferred in alignment with their wishes, preserving their legacy and providing peace of mind during a challenging time.

Book Your Free Consultation Now

Can property be transferred without probate in Ontario

Property can indeed be transferred without probate in Ontario, but given the average Ontario home home sold for $832,376 as of August 2023 - Because of this, it's highly unlikely for many estates to fall under the $50,000 threshold that allows for the bypassing of probate.

The notable exception is the "First Dealings" in the province of Ontario. If the last transaction for a property took place under the older Land Titles system and there has been no transfer of title or sale under the newer Land Registry system since the owner's death, then probate isn't necessary. This is because the previous Land Titles system didn't require probate.

So, while there are provisions in place that allow property to be transferred without probate, given current property values and other constraints, such scenarios are relatively rare.

Can a house be sold before probate in Ontario

While an agreement of purchase and sale can be entered into before the completion of probate, the actual sale cannot close until probate is completed.

How much does a title transfer cost in Ontario

In Ontario, the cost for a title transfer can vary due to different pricing structures across real estate legal firms. However, on average, one can expect to pay around $1,000 for a title transfer. It's always a good idea to inquire directly with legal professionals or firms in the region for precise figures.