In this article we explore three scenarios involving the transfer of real estate in British Columbia after someone dies.
Transmission to Surviving Joint Tenant
Understanding Joint Tenancy vs. Tenancy in Common
Many people in British Columbia own property in joint tenancy with another person, often their spouse. A joint tenancy arises when the title to the property specifically states that it is owned in joint tenancy.
If the words “joint tenants” are absent from the title, the ownership defaults to a tenancy in common. When two or more people are on title and the words “joint tenants” are absent, the law presumes a tenancy in common. For tenancies in common, when one owner dies, that person’s share passes through their estate, not to the surviving owners.
Process of Transmission to Surviving Joint Tenant
In a joint tenancy, when one joint tenant dies, the surviving joint tenant automatically receives the deceased’s share of the property. The right is automatic, but filing paperwork with the BC Land Title and Survey Authority (LTSA) is necessary to make the transmission effective. Generally, this includes filing the original death certificate and an LTSA filing form (typically, a Form 17 Fee Simple) with the Land Title office, along with payment of a processing fee.
After the LTSA processes the application for transmission to the surviving joint tenant, which may take a few weeks or more, the deceased owner’s name will be removed from title, leaving the surviving joint tenant as the sole owner.
Handling Mortgages on the Property
If a mortgage exists on title, the surviving joint tenant will normally inform the lender about the joint owner’s death. Depending on the mortgage terms, the lender may have further questions or review the mortgage documents. For these reasons, contacting a lawyer when a joint tenant passes away is a good idea to ensure the appropriate steps are taken.
Sale by Estate
Commonly, a person gives their executor the power to sell their property after death, intending for the executor to distribute the proceeds among the deceased’s children or beneficiaries. This power is usually specified in a will.
After a person dies, and before the executor can deal with the deceased’s real estate, the executor must register on title as the property owner. This requires obtaining a grant of probate from the Supreme Court of BC.
Once the grant of probate is obtained, the process to transmit title to the executor is fairly simple and involves an application with Land Titles. After the executor becomes the registered owner of the property, they can sell or otherwise manage the property, adhering to their duties to the estate and the deceased’s will, if any.
Transfer to Named Beneficiary under a Will
When a person names someone in their will to receive a gift of real estate, additional steps are required before the beneficiary can become the legal owner. Whenever real estate passes through the estate, the executor must first obtain a grant of probate and apply to become the registered owner of the property.
Process of Transferring Property to Beneficiary
If the will names someone to receive a property gift, the executor must transfer the property to the named beneficiary. This process can take some time, as the law restricts the executor from transferring real estate to a beneficiary for 210 days following the grant of probate. This rule aims to protect persons who may have a wills variation claim if the will did not adequately provide for them. The executor can transfer the property early if all legally entitled parties consent before the 210-day period expires.
Timeline and Considerations for Beneficiaries
In practice, a person named in a will to receive real estate in BC may have to wait a year or more before the title can be transferred to them. This delay is due to the time it takes the executor to obtain a grant of probate and the 210-day mandatory waiting period after issuing the grant of probate.
Administering an estate can be complex work, and executors often face personal liability when handling estates. Accordingly, seeking legal advice before accepting the role of executor is almost always a good idea.
