In this article we look at 3 different circumstances in which British Columbia real estate is dealt with after a person passes away.
Transmission to Surviving Joint Tenant
Many British Columbians own property in joint tenancy with another person, often with their spouse. A joint tenancy is a special type of ownership that arises when the title to the property specifically states that it is owned in joint tenancy.
If the words “joint tenants” are not specified on title, then ownership will not be in joint tenancy. When two or more people are on title and the words “joint tenants” are not present, the law presumes another type of ownership, called 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. In a joint tenancy, when one joint tenant dies, the surviving joint tenant is automatically entitled to the deceased’s share of the property. Although the right is automatic, it is necessary to file paperwork with the BC Land Title and Survey Authority (LTSA) to make the transmission effective. Generally speaking, this includes filing the original death certificate and accompanying 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 surviving joint tenant (this process 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.
Sale by Estate
Commonly, a person will give their executor the power to sell their property after they die, with the intention that the executor will 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 be registered on title as the owner of the property. This requires a grant of probate from the Supreme Court of BC.
Once a grant of probate is obtained, the process to transmit title to the executor is fairly simple and is done by application with Land Titles. After the executor becomes the registered owner of the property, they are able to sell or otherwise deal with the property, subject of course to their duties to the estate as executor and to the deceased’s will, if any.
Transfer to Named Beneficiary under a Will
When a person names someone in their will who 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 go through the process outlined above, including obtaining a grant of probate and applying to become the registered owner of the property. If the will names someone to receive a gift of property, the executor is generally obligated to 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 is intended to protect persons who may have a wills variation claim if they were not adequately provided for in the will. There is an exception when all of the beneficiaries consent to the early transfer of the property before the 210 day period expires.
In practice, this means that a person who is named in a will to receive real estate in BC may have to wait a year or more before title can be transferred to them. This is because of the time it takes the executor to obtain a grant of probate (often 4-6 months after death) and the 210 day mandatory waiting period after the grant of probate is issued.