Joint Tenants vs Tenants in Common
Published on 29 August 2022, 07:22:56 AM
Who inherits homes you own with others when you die doesn’t have to be a mystery.
Axess Law answers any questions you have when we write your last Will and testament. We update your Will if you have married, separated, divorced or had children since you wrote yours.
Handwritten or holographic last Will and testament? We can give you a professionally prepared Will.
Making a Will and storing it where you estate trustees can easily access ensures your loved ones are cared for, even if you unexpectedly pass away.
What Do You Mean By Tenants?
We know you own your home. But joint tenancy and tenancy in common — two very different ways of owning real property — apply to you anyway.
The difference between joint tenants and tenants in common matters if you:
- buy or own property with a spouse or common law partner
- write a Will in Ontario
- or are adding names to house titles in Ontario.
Joint Tenancy
Joint tenants share real property — homes, cottages, condos, recreational vehicles, even boats — equally. You and your spouse may have a 100% share each of your property or you may share it with other parties like parents.
Regardless, all shares are equally distributed and, if any co-owner dies, redistributed equally among the share holders. Joint tenants have a right of survivorship in Ontario. That saves you the trouble of probating a deceased’s Will in court, which can take months or years of your life.
See Surviving Your Spouse below.
What Is the difference between a tenancy in common (TIC) and joint tenancy?
Tenants in Common
In contrast, tenants in common split ownership of real property any way they see fit. For example, your spouse could own 75% of your principal residence and a brother and sister-in-law who live with you 25%. (Designate a principal residence for tax purposes.)
What does tenancy in common entitle owners to do? Even though you are not on title, you can claim your spouse’s share as your matrimonial right if they die before you or an equal portion if you get a divorce. Other co-owners’ shares (your brother and sister-in-law) pass to beneficiaries in their Wills or, if there is no Will, as dictated in Ontario’s intestacy laws.
Surviving Your Spouse
Spouses who die without clarifying who owns matrimonial homes in their Will can leave you in legal limbo.
Right of Survivorship While Married
As long as you were joint tenants, you can exercise your right to survivorship. Axess Law applies to have your deceased spouse’s name removed from the title to matrimonial properties so you can continue living there yourself. Matrimonial homes are legally yours, with no probate required. Co-owners who are also joint tenants stay on title unless you buy them out and share in the title equally with you.
Figure out how to value assets for probate.
After a Divorce
That also applies if your spouse dies while you are divorcing. Even if your spouse had already changed their Will to disinherit you, as a legally married spouse, you have a right to make a survivorship application for matrimonial homes. Property division decisions you agreed to as a couple or that were ordered by a court stand if your divorce was final when your spouse passed away.
Legal Status for Wills
Since joint tenants are legal owners, matrimonial homes pass to their spouses after they die. Homes you have a survivorship right to pass to beneficiaries in your own Will if your spouse predeceases you. But if you failed to make a legally valid Will, your homes may go to dependant children you may not have known your deceased spouse had.
Dying Without a Legal Will
Dying intestate in Ontario without a Will or having your Will declared invalid could result in matrimonial homes being distributed by a probate court under provincial intestacy laws, the Succession Law Reform Act.
Minor or financially dependent adult children inherit first if both parents are deceased and there is no surviving, valid last Will and testament. Surviving parents, then siblings, nieces and nephews or any remaining next-of-kin inherit, in that order, when there are no children, current or on the way, from or outside your marriage.
Joint Tenancies With Children
Our Wills and estates lawyers are often asked should adult children be included in a joint tenancy? If you have adult children you want to share jointly tenanted property with, speak with a tax accountant about how it would affect your tax liabilities.
See why you should add a 30-day survivorship clause to your Will.
Why You Need a Lawyer
Handwritten or holographic Wills you make yourself may not meet strict standards for Ontario Wills. Your last Will and testament could be invalidated if it is not legally valid.
Having Axess Law prepare your Will allows you to ask nagging questions you may be wondering about. We witness and sign your Will in front of you and advise you on how to store it securely.
Include joint tenancy with right of survivorship (Ontario) in your Wills planning.
Read common questions you ask our lawyers.
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Access lawyers for less in Greater Toronto Area, Ottawa, or anywhere in Ontario when you buy, sell, or transfer property. Axess Law’s flat fee real estate lawyers are affordable, and our rates are all inclusive (excluding taxes, disbursements, and third-party charges). Axess Law offers you only the legal services you absolutely need. Your final invoice includes no surprises or hidden charges. Your itemized statement of adjustments is explained when we deliver it, and we answer any questions you have about it.
Book Appointments Online or By Phone Today
Dial our 647-479-0118 lawyer line today to make appointments to transfer title to a property, or write or update your Will. Toll free calls are accepted at 1-877-402-4207. Booking online saves time. Make appointments quickly and easily with our online booking form. We can meet you in person at any of our Axess Law locations, We have onsite parking and easy transit access.
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