In this article, we discuss three common scenarios in which title to British Columbia real estate transfers after a person’s death:
- Transmission to a surviving joint tenant
- Sale of real estate by a deceased’s estate
- Specific gifting of real estate to a named beneficiary in a will
We last wrote about this topic in 2017
In this article, we update the law in our prior article and elaborate on what happens to British Columbia real estate when you die.
Transmission to Surviving Joint Tenant
Types of Co-Ownership
The two main types of co-ownership of real estate in British Columbia are “joint tenancy” and “tenancy in common.” For tenants in common, the share of a deceased co-owner passes to their estate. In this section, we discuss joint tenants and what happens to real estate when one joint tenant dies.
In a true joint tenancy, the joint tenants have equal interests in the property. When one joint tenant dies, the surviving joint tenant receives the deceased’s share of the property unless the joint tenants die fewer than five days apart, converting the joint tenancy into a tenancy in common.
Transmitting Property
In BC, title to the property includes the words “joint tenants” after the names of the co-owners. If the words “joint tenants” do not appear, we presume the co-owners hold the property as tenants in common. Note that “joint tenants” on title are not always conclusive. For example, co-owners may own the property as tenants in common if an unregistered transfer has severed the joint tenancy.
To transmit property to a surviving joint tenant, you must file certain documents with the BC Land Title and Survey Authority (LTSA), including:
- A death certificate or certified copy of the grant of probate or administration
- A Form 17 application
- A Property Transfer Tax Return
- Any applicable Land Owner Transparency Act filings
Generally, the surviving joint tenant will not pay Property Transfer Tax. However, the surviving joint tenant will pay Additional Property Transfer Tax if the property is within specified BC areas and the surviving joint tenant is a foreign national.
Once the LTSA processes the application, they will remove the deceased owner’s name from the title, leaving the surviving joint tenant as the registered owner.
If there is a mortgage on title, the surviving joint tenant should contact the lender. The lender may review the mortgage documents and ask for further information.
Common Misconceptions
Real estate held in a joint tenancy does not always transmit separately from the deceased’s estate. For example, if the deceased held the property as joint tenants with another person and retained all beneficial ownership, the property may be subject to estate considerations. This situation can arise where property is held in joint names with an adult child. In such cases, you must carefully consider the nature of the joint tenancy or if the surviving co-owner’s interest is held in trust for the deceased’s estate.
Sale by Estate
Often, a person gives their executor the power to sell any real estate they own when they die, intending to distribute the proceeds among the deceased’s beneficiaries. Usually, this power is specified in a will.
Before dealing with the deceased’s real estate, the executor must register on title as the owner. To do this, they must obtain a grant of probate or administration from the Supreme Court of British Columbia.
Once they obtain a grant of probate, they complete the process to transmit title to the executor by applying with Land Titles. After the executor becomes the registered owner, they can sell or otherwise deal with the property, subject to the terms of the will and their duties to the estate.
Transfer to Named Beneficiary under the Deceased’s Will
Gifting Real Estate in a Will
When a person specifically gifts real estate to a named beneficiary in their will, they must take certain steps before the named beneficiary becomes the legal owner. The executor must first obtain a grant of probate and then apply to register as the owner of the property in their capacity as executor of the estate.
Probate and Transfer Restrictions
British Columbia law restricts the executor from transferring real estate to a named beneficiary for 210 days following the grant of probate. This rule protects persons who may have a wills variation claim if the will did not adequately provide for them. There is an exception when all beneficiaries consent to the early transfer of the property before the 210-day period expires, or if a court orders.
Timing and Considerations
As a result, it may take a year or more for the named beneficiary to receive a gift of real estate according to the will. This relates to the time it takes to obtain a grant of probate (often 6 or more months after death) and the 210-day mandatory waiting period after issuing the grant of probate.
Final Thoughts
Estate administration can be complicated and time-consuming. Executors face significant personal liability when handling estates. Seeking professional advice before accepting the role of executor and during estate administration is a good idea.
As always, this article contains general information only and is not a substitute for legal advice on specific concerns. If you have any questions or need personalized advice, please consult with a lawyer and do not rely solely on the information in this article.
