Estate Title Transfers in Ontario

When a deceased person owned real estate that does not pass to a surviving joint owner by right of survivorship, legal documents may be required to place the property under the authority of the estate trustee and, where appropriate, transfer it to a beneficiary.

The process may involve registering a transmission application, transferring the property to one or more beneficiaries, or completing a sale on behalf of the estate.

Nobari Law Professional Corporation assists estate trustees and beneficiaries with estate title transfers involving Ontario real estate.

An estate-related title application may be required where the deceased:

• was the sole registered owner of the property; 
• owned an interest as a tenant in common; 
• was the last surviving joint owner; 
• left the property to a beneficiary under a Will; 
• died without a Will and the property passes under Ontario’s intestacy laws; or 
• owned property that must be sold or otherwise dealt with by the estate trustee. 

The documents and legal steps required will depend on how the deceased owned the property, whether there is a Will, whether probate has been obtained, and what is intended for the property.

The appropriate process depends on how ownership was registered.

Joint tenancy generally includes a right of survivorship. When one joint tenant dies, the deceased owner’s registered interest may pass to the surviving joint owner or owners.

A survivorship application may then be registered to remove the deceased owner’s name from title.

Where the deceased was the sole owner or held an interest as a tenant in common, the property or ownership share generally forms part of the deceased’s estate.

An estate title application may be required rather than a survivorship application. Ontario law permits the personal representative or other person legally entitled to the deceased owner’s interest to be registered in accordance with the applicable land-registration requirements. 

A transmission application is a land-registration document used to record the authority of an estate trustee or another person legally entitled to deal with the deceased owner’s interest in the property.

Depending on the circumstances, the application may include information concerning:

• the deceased registered owner; 
• the date of death; 
• the estate trustee or person claiming entitlement; 
• the Certificate of Appointment of Estate Trustee or other authority; 
• estate debts, where relevant; and
• applicable spousal rights. 

Registering a transmission application does not necessarily transfer the property to a beneficiary. Further documents may be required to distribute or sell the property. Ontario’s electronic-registration rules prescribe information and supporting authority that may be required for transmission applications. 

Probate is not required for every estate. However, where the deceased owned Ontario real estate that does not pass by right of survivorship, a Certificate of Appointment of Estate Trustee is commonly required to establish who has authority to deal with the property.

The requirements may depend on:

• how title is registered; 
• whether the deceased left a Will; 
• who has authority to administer the estate; 
• whether the property will be transferred or sold; and 
• the circumstances of the estate.

Where probate has not been obtained, a probate application may need to be completed before the estate title work can proceed.

An estate trustee may transfer property to the person or persons entitled under the Will or Ontario’s intestacy laws.

Before the transfer, the estate trustee should consider:

• the terms of the Will, where applicable; 
• the beneficiary or beneficiaries entitled to the property; 
• whether the estate trustee has the required authority; 
• whether the property is being transferred as part of the beneficiary’s inheritance; 
• whether any money or other consideration is involved; and 
• any mortgage or other registered interest affecting the property. 

The estate title transfer must reflect the applicable estate documents and the beneficiary’s legal entitlement. Any later change in ownership may require a separate property transfer.

Where estate property is transferred to a beneficiary in satisfaction of their entitlement under the Will or Ontario’s intestacy laws, the value of the consideration may be nil and no Ontario land transfer tax may be payable.

Land transfer tax may apply where the recipient provides money or other consideration for the property or is not the beneficiary entitled to receive it from the estate.

The applicable treatment will depend on the estate documents, the beneficiary’s entitlement, and the details of the transfer.  

An estate title transfer does not automatically remove an existing mortgage, secured line of credit, lien, or other registration affecting the property.

The estate trustee or beneficiary is responsible for contacting the lender or mortgage professional and addressing any requirements relating to the death, change in ownership, refinancing, repayment, or continuation of the existing financing.

A beneficiary receiving title does not automatically become a borrower under the deceased owner’s mortgage. Similarly, transferring the property does not release the estate or another person from existing financial obligations.

Instead of transferring the property to a beneficiary, the estate trustee may be required or authorized to sell it.

The authority to sell will depend on matters such as:

• the Will, if any; 
• the estate trustee’s appointment and authority; 
• whether probate has been obtained; 
• estate debts and expenses; 
• the interests of the beneficiaries; and 
• the registered ownership of the property. 

Ontario’s public probate guidance recommends obtaining the applicable Certificate of Appointment before entering into an Agreement of Purchase and Sale where estate real property must be sold. Where the Certificate is still pending, the Agreement should address the outstanding Certificate and provide appropriate flexibility for the closing date.

The sale of estate property involves separate purchase-and-sale closing work in addition to any required estate title documents.

A transfer or sale of estate property may have tax and estate-administration consequences.

The estate title transfer retainer does not include valuing the property, determining the estate’s tax liability, or preparing tax returns. Estate trustees and beneficiaries should obtain advice from an accountant or qualified tax professional where required.

The estate trustee or beneficiary may be asked to provide:

• valid, current identification and any additional documents required for identity verification; 
• the property address; 
• acceptable proof of death; 
• the deceased owner’s full legal name and date of death; 
• a copy of the deceased’s Will and any codicils; 
• the Certificate of Appointment of Estate Trustee, if issued; 
• information about the estate trustee and beneficiaries; 
• a recent property-tax bill; 
• mortgage or secured line-of-credit information; 
• condominium information, where applicable; 
• details of the intended transfer or sale; and 
• any available title, purchase, estate, or property documents. 

Additional documents may be required depending on the registered ownership, estate documents, beneficiaries, and intended transaction.

Do not send original documents, identification, complete account numbers, passwords, or other sensitive information unless requested by Nobari Law Professional Corporation. If requested, please use the document-sending method confirmed by the firm.

Depending on the registered ownership, estate documents, and scope of the retainer, Nobari Law Professional Corporation may assist with:

• reviewing the registered ownership as required; 
• determining whether a survivorship application or estate title application is appropriate; 
• reviewing the available Will, Certificate of Appointment, proof of death, and property information; 
• preparing a transmission application and required registration statements; 
• preparing the transfer documents required to transfer the property;
• completing applicable land transfer tax statements; 
• obtaining the required authorizations and signatures; 
• registering the estate title documents; 
• addressing registration requirements that arise during the process; and 
• reporting to the client after registration. 

Probate applications, estate administration, real estate sales, ownership disputes, mortgage changes, tax advice, and other estate matters may involve separate legal services.

The documents required to deal with a deceased owner’s property depend on how title was registered, the estate trustee’s authority, the beneficiaries’ entitlements, and what is intended for the property.

Contact Nobari Law Professional Corporation to discuss an estate title transfer or transmission application involving property in Ontario.