If you share property in BC, how you include it in your will depends entirely on your ownership type. With joint tenancy, the property automatically transfers to surviving owners, bypassing your will. With tenancy in common, you can will your specific share to anyone. Check your property title, consider converting to tenancy in common for more control, and clearly address your property share in your will. The following details will help you navigate these important estate planning differences.
Joint Tenancy vs. Tenancy in Common: Key Differences for BC Homeowners
Two key forms of property ownership in British Columbia can greatly impact your estate planning: joint tenancy and tenancy in common.
These arrangements determine what happens to your property after you die.
In joint tenancy, you and your co-owner equally own the entire property. The most important feature is the right of survivorship – when you die, your ownership automatically transfers to the surviving owner, regardless of what your will says.
Your property bypasses probate and is not distributed according to your wishes.
With tenancy in common, you own a specific share of the property (50/50, 70/30, etc.).
When you die, your portion becomes part of your estate and is distributed according to your will.
This gives you flexibility to determine who inherits your share, making it ideal if you want control over your property’s future ownership.
How Survivorship Rights Impact Your Estate Planning
Survivorship rights play a central role in how your property will be distributed after your death, making them a key consideration in effective estate planning. When you co-own property in BC, how you hold that title determines whether your share can be included in your will or passes automatically to the surviving owner.
| Ownership Type | Effect on Will | Estate Planning Impact |
|---|---|---|
| Joint Tenancy | Property bypasses will | Surviving owner gets 100% ownership regardless of will provisions |
| Tenancy in Common | Your share passes through will | You control who inherits your property share |
| Split Ownership | Can convert joint to tenancy in common | Allows greater control over your portion |
Understanding these rights lets you make strategic decisions about property ownership that align with your broader estate planning goals and family circumstances.
Steps to Include Your Property Share in Your Will
When determining how to include your property share in your will, first verify your ownership status on the title certificate.
If you are a tenant in common, you can specifically bequeath your share to your chosen beneficiary. Clearly identify the property using its legal description and specify the recipient’s full name.
For thorough estate planning, consider consulting a lawyer to draft a proper will that addresses potential complications.
You will need to account for possible costs your estate might face, such as property transfer tax or mortgage obligations.
If you are currently a joint tenant but wish to include your share in your will, you will need to sever the joint tenancy first by filing the appropriate form with the Land Title Office, converting it to tenancy in common.
This step guarantees your property share follows your wishes.
Probate Implications for Different Types of Property Ownership
The probate implications for your BC property markedly differ depending on whether you own it as a joint tenant or tenant in common.
As a tenant in common, your share becomes part of your estate when you die. This means your portion must go through probate—the court process that validates your will and authorizes the executor to distribute assets. Your property share will be subject to probate fees and potential delays.
When you own property as a tenant in common, your share must pass through probate, incurring fees and possible distribution delays.
In contrast, property held in joint tenancy bypasses probate entirely. When you die, your interest automatically transfers to the surviving joint tenant(s) through the right of survivorship. This saves time and money as no probate is required for this transfer.
Understanding these implications can help you make strategic decisions about how to structure your property ownership to align with your estate planning goals.
Changing Your Property Ownership Structure in BC
If you are considering changing your property ownership structure in BC, several legal options exist to convert between joint tenancy and tenancy in common.
You can file a “severance of joint tenancy” at the Land Title Office to convert a joint tenancy into a tenancy in common without requiring the other owner’s permission.
Alternatively, all owners can agree to execute a new deed that restructures the ownership. This mutual agreement approach is often more amicable when relationships are positive.
It is critical to understand that these changes affect what happens to your property after death.
Converting to tenancy in common guarantees your property share passes according to your will, while maintaining joint tenancy means it automatically transfers to surviving owners.
Consult a lawyer before making changes, as tax implications and estate planning consequences should be carefully evaluated.
Estate Tax Considerations for Jointly-Owned Properties
Although estate tax planning might seem complicated for jointly-owned properties, understanding the tax implications can save your beneficiaries significant costs and complications.
Estate planning for co-owned properties is not just sensible—it is essential for protecting your loved ones from unnecessary financial strain.
In BC, there is no inheritance tax, but capital gains tax may apply when property transfers on death.
For joint tenancy properties, the principal residence exemption can shield your property from capital gains tax if it is your primary residence.
However, if it is a second property or investment, the surviving owner will not face immediate tax consequences due to the automatic transfer, but they will inherit your original cost basis.
With tenancy in common, your share enters your estate, potentially triggering capital gains tax during probate.
You can minimize this burden by carefully structuring ownership percentages or considering trusts as alternative ownership vehicles.
Creating a Co-Ownership Agreement to Complement Your Will
Beyond tax planning, property co-owners should establish a formal co-ownership agreement that works alongside their will to provide thorough protection.
This document outlines how day-to-day property decisions will be managed and what happens upon a co-owner’s death.
Your agreement should address several critical elements: rights to sell or transfer ownership, buyout provisions, dispute resolution mechanisms, and maintenance responsibilities.
For tenants in common, include specific instructions about how your share will be handled after death, complementing your will’s directives.
Having both a co-ownership agreement and an updated will guarantees your property interests are fully protected.
They work together—your will directs who inherits your share, while the agreement provides the framework for how the inheritance process unfolds practically.
How Vest Estate Law Can Help
Maneuvering the complexities of property ownership and estate planning requires specialized legal expertise, which is exactly what Vest Estate Law provides.
As a boutique firm dedicated to wills and estates law across Alberta and BC, our legal team can guide you through the intricacies of including jointly owned property in your will.
Whether you are deciding between joint tenancy or tenancy in common, drafting a co-ownership agreement, or need assistance with estate administration, we offer exceptional legal services tailored to your specific needs.
Our lawyers can review your title certificate, explain your options, and guarantee your estate plan aligns with your wishes.
If disputes arise, we excel at estate litigation, providing focused representation when needed.
Work with Vest Estate Law to create a thorough estate plan that adequately addresses your BC property interests.
Frequently Asked Questions
Can Foreign Co-Owners Affect How My BC Property Is Distributed?
Your foreign co-owner status does not change BC property distribution rules. The ownership type (joint tenancy vs. tenancy in common) still determines if your share passes through your will.
What Happens if Co-Owners Die Simultaneously in an Accident?
If you and your co-owner die simultaneously, survivorship cannot occur in joint tenancy. The property would typically be divided as if you were tenants in common and distributed through your wills.
How Do Mortgage Obligations Transfer When a Property Co-Owner Dies?
When your co-owner dies, you will still be responsible for mortgage payments. If you are joint tenants, you will inherit their share and its obligations. As tenants in common, their estate handles their portion.
Can Life Estate Arrangements Replace Joint Tenancy Survivorship Rights?
Yes, a life estate can replace joint tenancy survivorship rights by giving you lifetime use while designating who inherits after your death, unlike joint tenancy’s automatic transfer to co-owners.
How Do Separation or Divorce Proceedings Affect Joint Property in Wills?
During separation or divorce, your joint property does not automatically change ownership. You will need to legally convert joint tenancy to tenancy in common before you can include it in your will.
Conclusion
You will need to understand how you own shared property before finalizing your will. If you are a tenant in common, you can leave your portion to anyone. If you are a joint tenant, your share automatically transfers to co-owners. Consider changing your ownership structure if it does not align with your wishes. Consulting an estate lawyer will guarantee your property passes according to your intentions, not default rules.
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Preet Mandair
WILLS and ESTATES LAWYER
Preet’s practice focuses primarily on estate litigation. Preet is dedicated to providing practical and strategic advice to all clients in all aspects of estate litigation by understanding and assessing each client’s unique needs and advocating for her clients in a methodical and effective manner.
