Clients often ask what they can do during their lifetimes to simplify the administration of their estates. One way to do so is to put assets, such as real estate and bank accounts, into joint names with others with a right of survivorship. This means that when one of the owners dies, the asset automatically passes to the surviving owner(s) outside of the deceased owner’s estate. This eliminates the involvement of one’s executor or third-party institutions and the application of Estate Administration Tax (also known as Probate Tax). However, joint ownership has potential risks and complications, and in order to realize the intended benefits of joint-ownership arrangements, the intentions of the parties must be clearly documented.
Here are a few rules of thumb to bear in mind when it comes to joint ownership…
- Add your spouse as a joint owner of real property that you intend to leave to them;
- Add your spouse as a joint owner of investment and bank accounts that you intend to leave to them;
- Add a spouse or child as a joint owner of property, investment or bank accounts as a bare trustee, where you want to deal with the property in your Will but also want to avoid Probate Tax. This arrangement must be set up carefully in conjunction with a valid and explicit Declaration of Trust from the bare trustee(s) confirming that they are holding their beneficial interest in the property in trust for you or your estate, and a Secondary Will; and
- Make your intentions regarding jointly owned property clear in your Wills or other records, by including statements that either affirm or negate the surviving owner’s right of survivorship – this is especially important where you wish to rebut the presumption of resulting trust established in the 2007 SCC case Pecore v. Pecore, which established that assets held jointly between a deceased parent and adult child are presumed to be held by the child on a resulting trust for the deceased parent’s estate, or the presumption of joint ownership established by section 14 of Ontario’s Family Law Act, which states that property held as joint tenants by spouses is presumed to pass to the surviving spouse by right of survivorship.
- Add your spouse as a joint owner of property if you are part of a blended family and you intend to leave such property to your children from a prior relationship;
- Add a child or another family member as a joint owner to real property without considering the economic and logistical risks of doing so, such as exposing the property to family law claims from the child’s spouse, or requiring such child sign off on certain changes related to the property, like selling it, adding a mortgage or updating insurance;
- Put assets into joint ownership together with Declarations of Trust without having a Secondary Will stipulating that assets held in trust for you form part of your Secondary Estate – failure to have a Secondary Will in place would negate the intended Probate Tax savings of a legal joint ownership arrangement; and
- Forget that when capital property passes by right of survivorship to anyone other than a surviving spouse (or common law partner), the deceased’s estate will remain liable for the capital gains tax owing in respect of the deceased owner’s interest therein. Accordingly, it is not recommended to make one beneficiary a joint owner of real property with a right of survivorship and to try to equalize other beneficiaries with cash or other assets that will flow through your estate.
At Mills & Mills LLP, our estate lawyers can assist you in deciding whether it’s practical and prudent to hold assets jointly with others (and our real estate lawyers can assist in making changes to title where appropriate). We strive to help our clients build comprehensive estate plans to suit their specific needs. To learn more about how we may be able to assist you please reach out to us online or by telephone at (416) 863-0125.