Wills and Estates Planning
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In British Columbia, a co-owner does not automatically inherit the home when the other owner dies. That happens only if the owners hold title as joint tenants and the joint tenancy has not been ended. If they hold title as tenants in common, each owner’s share passes under that owner’s will, or under the law if there is no will. The default rule in section 11 of the Property Law Act is tenancy in common, so people who want joint tenancy must make sure their title documents say so clearly. This guide and video explain the difference, how a joint tenancy can end, and why adding an adult child to title can have results many families do not expect.
In this guide
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When two or more people own land together in British Columbia, there are two main ways to hold title: joint tenancy and tenancy in common. The choice affects what happens when an owner dies, whether an owner can leave their share in a will, and how a dispute over the property can unfold.
Joint tenancy comes with the right of survivorship. When one joint tenant dies, that person’s interest ends and the surviving joint tenant or tenants take the whole property. In general, if the joint tenancy has not been ended, the deceased owner’s interest does not pass through the will or the estate.
The Court of Appeal for British Columbia has described this effect. In Cooke v. Miller (Estate), 2005 BCCA 263 (at para. 24), the Court said that when the deceased joint tenant died, his interest was extinguished and the survivor took the entire assets. In Herbach v. Herbach Estate, 2019 BCCA 370 (at para. 40), the Court said that where the joint tenancy was not severed during the owner’s lifetime, the survivors acquired the assets and they did not form part of the deceased’s estate.
One qualification matters. Survivorship decides who takes legal title, but it does not always decide who owns the property in substance. A survivor may take legal title and still be found to hold the property for the deceased’s estate. We return to that below.
Because assets held in joint tenancy can pass outside the estate, they may also affect estate planning and the probate process. See also our guide to estate distribution in BC.
Tenancy in common is different. Each owner holds a separate share of the property. There is no right of survivorship. When a tenant in common dies, that person’s share goes to the estate and is dealt with under the will or, if there is no will, under the law.
The shares do not have to be equal. They can be stated in the title documents, for example 70% and 30%.
Here is what surprises many people. Under subsection 11(2) of the Property Law Act, when land is transferred to two or more persons (other than personal representatives or trustees), they take as tenants in common unless a contrary intention appears in the instrument. The section covers certain transfers, devises, charges and agreements for sale, and it has exclusions, so its exact scope should be checked against the statute.
Under subsection 11(3), if the interests of the tenants in common are not stated in the instrument, they are presumed to be equal.
The practical message: if owners want joint tenancy, the title documents must clearly say so. Buyers should confirm how title will be held before they sign, and a lawyer handling the purchase can explain the options. See our real estate lawyer services.
A land title search shows how title is currently held. If you bought a home with a spouse, a partner, a relative or a friend, it is worth confirming whether the registered title says joint tenancy or tenants in common, and whether any share is stated. Many owners assume one thing and find another.
Yes. Under subsection 18(3) of the Property Law Act, a transfer by a joint tenant of their interest to themselves has the same effect of severing the joint tenancy as a transfer to a stranger. After severance, the owners hold as tenants in common.
Registration is a related question. Section 20(1) of the Land Title Act says an instrument purporting to transfer an interest in land does not pass an estate or interest unless it is registered, except as against the person making it. In Zeligs v. Janes, 2016 BCCA 280 (at paras. 57 and 58), the Court of Appeal explained that an effective transfer by a joint tenant can sever the joint tenancy even before registration, but a bare statement of intention is not enough: some form of action or mutual agreement is required.
Severance can change who inherits. It should therefore be considered carefully, with legal advice, because the rules on registration, timing and the other owner’s rights are detailed.
Many parents add an adult child to the title of their home, thinking the child will simply receive it later. The Supreme Court of Canada set out the key rule in Pecore v. Pecore, 2007 SCC 17. When a parent transfers property to an adult child for no payment, the law presumes that the child holds it in trust for the parent, unless there is evidence that the parent intended a gift. The Court described this as a rebuttable presumption of resulting trust (at para. 24) and said it applies to a gratuitous transfer to an adult child (at para. 36).
So the name on the title does not always decide who receives the property. A court looks at the evidence of the parent’s intention. Choosing joint tenancy is relevant to that intention, but it is not the only factor, and the presumption can change how the home is treated after a death. The Wills, Estates and Succession Act also preserves the law of resulting trusts in its survivorship rules (section 10(4)); see the Wills, Estates and Succession Act.
These issues often arise in family disputes after a death. See our articles on whether a parent can disinherit you in BC and sibling inheritance disputes in BC.
It is wise to review how you hold title:
Review also how your will, your enduring power of attorney and your title fit together. A transfer can also have tax and fee consequences, such as property transfer tax, so get advice before signing. Our wills and estates team can help you understand the options.
Joint tenancy carries the right of survivorship, so the survivor takes the property. In a tenancy in common, each owner holds a separate share that passes through that owner’s will or the law.
Only if you hold title as joint tenants and the joint tenancy has not been ended. If you are tenants in common, your share passes through your estate.
Under section 11(2) of the Property Law Act, transferees generally take as tenants in common unless the instrument shows a contrary intention, subject to the types of transfers and exclusions in the section.
Under section 11(3), if the interests of tenants in common are not stated in the instrument, they are presumed to be equal.
A land title search shows the registered owners and whether title is held as joint tenants or tenants in common.
Yes. Under section 18(3) of the Property Law Act, a joint tenant who transfers their interest to themselves severs the joint tenancy, and the owners then hold as tenants in common.
Registration is generally required to pass an interest under the Land Title Act, but the BC Court of Appeal has explained that an effective transfer by a joint tenant can sever the tenancy before registration. The rules are detailed, so get legal advice.
No. In Zeligs v. Janes, the Court of Appeal said a unilateral statement of intention is not enough; some action or mutual agreement is required.
Not necessarily. Under Pecore v. Pecore, a gratuitous transfer to an adult child is presumed to be held in trust for the parent unless the parent intended a gift.
It is relevant evidence, but it is not decisive on its own. Courts look at all of the evidence of the parent’s intention.
The survivor takes legal title, but beneficial ownership can still be questioned, for example where a resulting trust is alleged.
Yes. Changing title can affect inheritance, family disputes, tax and fees, so it is wise to get advice first.
If you want to understand how you hold title to a home or how it fits with your will, you can book a confidential consultation.
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Disclaimer: This article is general information only and is not legal advice. It is based on British Columbia’s Property Law Act, Land Title Act and Wills, Estates and Succession Act, and on court decisions, as of the date of publication. The law changes, and every case depends on its own facts. Reading this article does not create a lawyer-client relationship. Please speak with a lawyer about your own situation before acting.
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