When planning your estate, it’s important for us to understand the types of assets you own – especially real estate – and how they are owned. Property ownership affects how your assets are dealt with after death. If you own a property solely, it forms part of your estate and can be distributed through your Will. However, if the property is co-owned, the way it is held – either as joint tenants or tenants in common – determines what happens to your share upon death. This legal distinction, recorded on the land title, has a significant impact on your estate plan and how your property is passed on to beneficiaries.

Joint Tenants

  • All joint tenants own the property together as a whole – no individual owns a defined share
  • When one joint tenant dies, their interest passes to the surviving joint tenant/s automatically
  • This transfer happens regardless of what the deceased person’s Will says

Joint tenancy can be a cost-effective estate planning tool and provides certainty that:

  • The surviving joint tenant/s will continue to own the property
  • Probate is not required to transfer ownership

For these reasons, it is common to own a property as joint tenants with a spouse or partner.

Tenants in Common

  • Tenants in common own a separate share of the property
  • All tenants in common are registered owners on the same land title
  • Shares of the property can be equal (e.g. 50/50) or unequal (e.g. 95/5)

When one tenant dies. their share does not automatically pass to the other owners and the property becomes part of their estate.

A tenant in common can gift their share by Will to any beneficiary. Probate is required to transfer the deceased’s share – even if its is being passed to a co-owner.

Tenants in common is therefore useful for estate planning when you want your interest in the property to pass to someone different, such as children from a previous relations.

How we can help

The Wills & Estates team can help you change ownership structures to achieve your estate planning outcomes.

When we meet with you to discuss your estate planning, our focus is to ensure that your wishes can take effect. If your wishes about who receives your interest in a property cannot be achieved because of the way you own it, we can advise you about the options to change the ownership and have that registered with Land Titles. This includes guidance about whether there would be duty payable or whether you should get specialist advice about tax consequences first.