For many Ontario families, the family home is their most valuable asset, and the one most likely to spark confusion, conflict, or costly delays after death. Markham homes in neighbourhoods like Unionville, Cornell, and Cachet routinely sell for well over a million dollars. Most owners have never considered what happens to that asset when they're gone. Here is what every Markham homeowner needs to know about estate planning and real estate in Ontario.
First: It Depends on How You Hold Title
Before anything else, what happens to your Markham home at death depends on how the property is registered on title with the Land Registry. There are two main ways Ontario homeowners hold title — and the difference between them is enormous.
If you co-own the property as joint tenants, the most common setup for married couples, the property automatically transfers to the surviving owner upon your death. This happens outside your estate entirely. No will, no probate, no court involvement required. The surviving joint tenant registers a survivorship application with the Land Registry, attaches a death certificate, and the transfer is complete within weeks.
If you own the property as tenants in common, either alone, or as co-owners with separately defined shares, your interest in the property forms part of your estate when you die. It does not pass automatically to anyone. Instead, it must go through your estate, governed by your will (if you have one) or Ontario's intestacy rules (if you don't).
You can check how your property is registered by searching your title on the Ontario Land Registry Access (OnLand) portal at onland.ca. Your real estate lawyer can pull a title search and explain exactly what it says. Kaizen Real Estate Team can refer you to trusted estate lawyers in the Markham area.
If You Have a Will: Probate and the Estate Trustee
If your home forms part of your estate, your will controls who receives it. You name an Estate Trustee (formerly called an executor) responsible for administering your estate according to your wishes.
However, before your Estate Trustee can deal with the property, sell it, transfer it, or distribute it, they will almost certainly need to obtain a Certificate of Appointment of Estate Trustee from the Ontario Superior Court of Justice. This process is commonly called probate.
Probate in Ontario can take anywhere from a few months to well over a year. During that time, the home cannot be sold, mortgaged, or transferred without court authorization.
Ontario Estate PracticeEstate Administration Tax (Probate Fees)
Ontario charges an Estate Administration Tax on the value of all assets passing through probate. The rate is approximately $15 per $1,000 of estate value above $50,000, a significant cost on a Markham property.
If You Die Without a Will: Intestacy in Ontario
Dying without a valid will, called dying intestate, means Ontario's Succession Law Reform Act determines who inherits your estate, including your home. The rules may not reflect your wishes at all.
- Spouse, no children: Entire estate goes to the spouse.
- Spouse and children: Spouse receives the first $350,000 (the "preferential share"), remainder is divided between spouse and children.
- Children only, no spouse: Divided equally among children.
- No spouse or children: Parents, then siblings, then other relatives by degree of kinship.
- No living relatives: The Crown (government) inherits.
- Common-law partners: Currently receive nothing under Ontario intestacy rules — a critical gap for many modern Markham families.
A common-law partner of 20 years has no automatic inheritance right in Ontario. A blended family may find step-children excluded entirely. Minors who inherit are subject to a court-appointed guardian controlling their share until age 18.
The Principal Residence Exemption and Capital Gains
Canada does not have an estate tax or inheritance tax. However, when a property is transferred at death, the deemed disposition rules under the Income Tax Act treat the deceased as having sold the home at its fair market value on the date of death.
If the home was the deceased's principal residence for every year of ownership, the Principal Residence Exemption (PRE) can shelter all capital gains from tax. For most Markham homeowners who lived in their home throughout their ownership, this means no capital gains tax on death.
When a home is transferred to a surviving spouse or common-law partner, the deemed disposition can be deferred, the tax is delayed until the surviving spouse sells or dies. This "spousal rollover" is automatic but can be elected out of in certain tax-planning circumstances.
The PRE does not apply to rental properties, secondary residences (cottages, investment condos), or the portion of a property used for business. Always consult a qualified tax professional.
Six Estate Planning Strategies for Markham Homeowners
With proper planning, many of the costs, delays, and conflicts described above can be significantly reduced or avoided. Here are the key tools Ontario homeowners use:
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01Make a Will — and Keep It Current A properly drafted will, prepared by an Ontario estate lawyer, is the foundation of all estate planning. Name a trusted Estate Trustee, specify what happens to your home, and name alternate beneficiaries. Review your will after every major life event: marriage, separation, new child, or purchase or sale of property.
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02Consider Joint Tenancy With Your Spouse For married or common-law couples, holding title as joint tenants ensures the home passes directly to the survivor without probate. Simple and cost-effective, but it comes with trade-offs around estate control and blended family situations. Review carefully with a lawyer before changing the title.
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03Designate Beneficiaries for RRSPs and Life Insurance These assets pass outside your estate if properly designated, bypassing probate entirely and often providing liquidity to pay estate costs without forcing a sale of the home.
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04Consider a Secondary Will Ontario allows "multiple wills", one for assets that require probate (like real estate) and a secondary will for assets that don't (like shares of a private corporation). This can significantly reduce the estate value subject to Ontario's Estate Administration Tax.
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05Explore a Trust A testamentary trust (created in your will) or an inter vivos trust (created during your lifetime) can hold real estate and provide control over how and when beneficiaries receive the property, which is especially useful for minor children or blended family situations.
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06Grant a Power of Attorney for Property A Power of Attorney for Property ensures someone you trust can manage your real estate if you become incapacitated before death, preventing costly court applications for guardianship.
When Families Disagree: Estate Disputes in Ontario
Even the most carefully drafted will can be contested. Ontario law allows certain people to challenge a will or make a claim against an estate. Common grounds include:
A spouse, child, or other dependant who was not adequately provided for in the will can apply to the court for support from the estate under the Succession Law Reform Act.
Family members may allege the deceased lacked mental capacity to make a valid will, particularly if dementia or illness was a factor at the time of signing.
A claim that the deceased was pressured into making a will that did not reflect their true wishes , most commonly raised where one family member had significant influence over the deceased.
A common-law partner or family member who contributed to the home's value, financially or through labour, may claim a share even without a legal ownership interest on title.
Frequently Asked Questions
It depends on how your property is registered. If you hold title as a joint tenant, the home passes automatically to the surviving owner through the right of survivorship — no probate required. If you hold title as a tenant in common, or alone, the property forms part of your estate and will likely need to go through probate in Ontario before it can be transferred or sold.
Ontario's Estate Administration Tax is approximately $15 per $1,000 of estate value above $50,000. On a $1.2 million Markham home passing entirely through the estate, that amounts to roughly $17,250 in probate fees — before legal and accounting costs. Proper estate planning through joint tenancy, multiple wills, or trusts can reduce or eliminate this cost.
Canada's deemed disposition rules treat the deceased as having sold all assets at fair market value on the date of death. However, if the home was the deceased's principal residence for every year of ownership, the Principal Residence Exemption can shelter all capital gains from tax — meaning no capital gains tax on death for most Markham homeowners. Rental properties and secondary residences are not protected by the PRE.
Questions About Your
Markham Property & Estate?
Michael John Lau and Neeraj Moolchandani can refer you to trusted Ontario estate lawyers and walk you through the real estate implications of your estate plan. Contact Kaizen Real Estate Team for a no-obligation consultation.