Joint tenancy and the right of survivorship

If you only understand one thing about how property passes at death, make it this one.

Two ways to own property together

Two people can own the same house under either arrangement, and the paperwork looks nearly identical to anyone who is not reading it closely. The consequence at death is completely different.

How families end up here without deciding to

Almost nobody chooses joint tenancy as an estate plan. They arrive at it for ordinary reasons:

• A couple buys a home together and the default registration is joint tenancy
• Someone remarries, buys a new home with a new spouse, and both go on title
• A parent adds an adult child to title to avoid probate fees, or so the child can help manage things
• A bank account is put in joint names for convenience, so someone can pay the bills

Each of those is reasonable on its own terms. Together with a will that says something different, they produce an outcome nobody sat down and chose.

The sequence that catches people out

A person owns a home. They remarry, sell it, and buy a new home with their new spouse, registered as joint tenants. Their will leaves their estate to their children. They die first.

The house passes to the surviving spouse by survivorship. It was never in the estate. The will divides whatever remains, which may be very little. What happens to that house afterwards depends entirely on the surviving spouse's own will, and they are free to leave it to anyone.

Nothing about that is unlawful, and often nothing about it was scheming. It is what the paperwork always said would happen. It just was not what anyone thought they had arranged.

Adding a child to title is not automatically a gift

This part surprises people, including people who did it. Where a parent gratuitously puts an adult child on title, Canadian law generally starts from a presumption of resulting trust: the child is presumed to hold that interest for the parent's estate rather than to have received a gift.

The presumption can be rebutted with evidence of what the parent actually intended, which is exactly the evidence that tends not to exist. If a parent genuinely means a joint registration as a gift, that intention needs to be written down at the time, not reconstructed afterwards by people with opposing interests.

What joint tenancy costs you

• Control. A joint owner generally cannot be removed unilaterally, and the survivor takes everything regardless of the will
• Exposure. The property may be reachable by the other owner's creditors, or become an issue in their separation or divorce
• Tax. Transferring a share can trigger a disposition at the time of transfer, and can compromise the principal residence exemption
• Estate claims. In BC, a wills variation claim reaches only what passes under the will, so survivorship property is generally out of reach

The probate fees saved are usually small next to any one of these.

What to check, today

1. Pull the title for every property and read how ownership is registered. Do not rely on memory or on what the will says.
2. Check the beneficiary designation on every registered account and insurance policy. Those also pass outside the will.
3. If a joint registration was meant as convenience rather than a gift, record that intention in writing now.
4. If it was meant as a gift, record that too. Ambiguity is what turns families into litigants.
5. Review all of it after any marriage, separation, death, or property purchase.

For how the tax side works when someone dies, see is there an inheritance tax in Canada.