There is a common assumption that, when property is owned by more than one person, the surviving holder automatically assumes primary ownership upon the other’s death. While this is sometimes true, what happens to property depends on how the ownership is defined in a title or deed.
Depending on whether a property is held through joint tenancy or tenancy in common, the deceased owner’s share may either transfer directly to the other owner(s) or become part of the deceased’s estate. This can have significant consequences for how property is distributed and whether probate is required.
Disputes often arise when family members or beneficiaries believe a jointly owned property should have been included in the estate. In these situations, questions concerning the deceased’s intentions, including whether they intended to transfer ownership as a gift, whether a person was added to title for practical reasons, or whether the ownership arrangement reflected their actual wishes, may come into play.
Understanding Joint Property Ownership in BC
Typically, property owned by more than one person is held as either joint tenancy or tenancy in common. Both arrangements allow multiple people to own the same property, but each has different legal consequences when one owner passes away.
What Is Joint Tenancy?
Joint tenancy forms a co-ownership between two or more people. Co-owners share an equal stake in the property. Instead of each owner having a separate percentage or designated portion, every joint tenant has an equal interest in the property as a whole. Each owner has the same right to possess, occupy, and use the property.
To create a valid joint tenancy, four legal requirements, commonly known as the four unities, must be met:
- Every owner’s interest in the property must begin at the same time.
- The ownership interests must arise from the same legal transaction or transfer.
- No owner can hold a larger or smaller ownership interest than another.
- Each joint tenant must have the same legal right to access, occupy, and enjoy the entire property.
Joint tenancies are common among married spouses and common-law partners because they allow ownership to pass to the surviving owner upon death. However, it may also be used in other situations where co-owners intend for the property to transfer automatically to the surviving joint tenant.
What Happens to Jointly Owned Property When One Owner Dies?
Joint tenancy is defined by right of survivorship. In most cases, when one joint tenant passes away, their ownership interest does not become part of their estate. Instead, it passes directly to the remaining joint owner or owners by operation of law.
Through right of survivorship, the joint tenancy property ownership is transferred outside of the estate directly to surviving owners. Additionally, this transfer is not subject to probate, so the ownership is fairly straightforward for surviving owners where there are no disputes.
What Is Tenancy in Common?
Rather than sharing ownership of the property as a whole, each tenancy in common owner holds their own individual interest, which can be dealt with independently of the other owners.
Ownership interests do not have to be divided equally. For example, one owner may hold a 50% interest while another owns the remaining 50%, or the ownership could be divided in unequal proportions, such as 70% and 30%. Because each owner’s interest is separate, they are permitted to sell, transfer, or use their share as security without affecting the ownership interests of the other co-owner(s).
Tenancy in common is often chosen by business partners, friends purchasing property together, or individuals in blended families who want greater control over how their ownership interest will be distributed after their death. Unlike joint tenancy, this ownership structure allows each person’s share of the property to form part of their estate rather than passing automatically to the surviving owner.
What Happens When a Tenant in Common Dies?
Tenancy in common does not include the right of survivorship as joint tenancy does; a surviving co-owner does not automatically inherit the deceased owner’s interest in the property. Instead, the deceased person’s ownership interest becomes part of their estate. If they left a valid will, their share is distributed in accordance with its terms. If there is no valid will, the interest is distributed under the Wills, Estates and Succession Act (WESA).
Because the deceased owner’s interest forms part of their estate, it will generally need to pass through the probate process before it can be transferred to the appropriate beneficiary or beneficiaries. As a result, probate fees may also apply.
Can Right of Survivorship Be Challenged?
Although the right of survivorship often allows a surviving joint tenant to become the property’s sole owner after the other owner’s death, it does not always prevent estate disputes. Beneficiaries or other interested parties may question whether the property was intended to pass directly to the surviving owner.
While property held in joint tenancy falls outside of the deceased’s estate and is not distributed under the terms of their will, there are situations where the ownership arrangement itself may be challenged. Courts may consider factors such as why the joint tenancy was created and whether it accurately reflected the deceased’s intentions at the time.
Questions surrounding the right of survivorship can become particularly important when there are conflicting expectations among family members or beneficiaries. In these cases, determining whether the property should remain with the surviving joint owner or form part of the deceased’s estate may require a closer examination of the circumstances.
Learn more about challenging survivorship.
Joint Ownership Between Parents and Adult Children
One of the most common disputes involving jointly owned property arises when a parent adds an adult child to a property’s title. Although this is often done for practical reasons, it does not necessarily mean the parent intended for the child to inherit the property after their death.
When these disputes arise, the court may consider whether the parent intended to gift their interest in the property or whether the child was added to the title for convenience. In BC, the law may presume that an adult child holds the property in a resulting trust for the parent’s estate rather than for their own benefit.
If that presumption applies, the property may become part of the estate and be distributed in accordance with the deceased’s will instead of passing to the surviving child through the right of survivorship. Evidence of the parent’s intentions, such as estate planning documents, written agreements, or other communications, may be important in determining the outcome.
Work With an Estate Litigation Lawyer in BC
If you are facing a dispute involving jointly owned property after the death of a loved one, Stephens & Holman can help you understand your rights and legal options. Our estate litigation lawyers have experience handling disputes involving joint ownership, right of survivorship, and contested estate assets. Contact our team to discuss your situation.