Dad passed away but the house was never transferred to Mom, now what?

Another reader has asked me a great question that should interest many of you. This particular situation arises more often than you might think. Here is the question:

I'm 30 years old and my father passed away when I was 13. My parents were married during this time. When my dad passed the house went to her and we have resided there since. Recently my mom was notified that her mortgage was paid off. Attached to this notice is what appears to be a summary of land title info. I noticed that the title still states his name, but I don't see hers anywhere. Is this a problem? Can we simply go down to the land titles offices and have this info updated?

It isn't a problem, since your Mom is still alive, but neither will it be as simple as "updating" the information.

I suggest you begin by clarifying the information you have. You said that it "appears to be" a summary of the title and that you don't see your Mom's name on it. Go to the Land Titles Office and find out for sure what is on the title. Take the summary with you to provide the legal land description. A search costs only a few dollars and it's essential that you know what you're dealing with.

If your Mom's name is not on the title, then she did not inherit it as a joint owner by right of survivorship. If your parents had been joint owners and the title had not been updated after your father passed, then both names would still appear. If she had been a joint owner then actually it would be just a matter of updating information. Your Mom could sign and swear (or declare) a very brief form, back it up with a copy of your Dad's death certificate, and that would be it.

As your Mom was not a joint owner and you said that the house went to her on your Dad's death, it sounds as if your Dad left a Will. Hopefully this is the case. My opinion is that the executor named in your Dad's Will will have to apply for probate in order to transfer the house to your Mom. This is not a matter of simply updating information; this is an entirely new transfer of title and I do not believe that it can be done without a grant or order of probate.

If your Dad did not leave a Will, your Mom will have to apply to the court to be named as administrator of the estate in order to get a grant from the court to transfer the property. If your Mom passes away while the house is still in your Dad's name, you'll still have to have a grant of probate or administration to deal with the house.

You might also take some time to check that other assets owned by your Dad were properly dealt with. Was there any other real estate, like a cottage or rental property? Were any RRSPs rolled over to your Mom? Are there investments or accounts still in your Dad's name? Was any life insurance naming your Mom collected?

Usually estates are set up so that when a husband or wife dies, the surviving spouse doesn't have to apply to the court for probate. Unfortunately, this leads many people to think that nothing needs to be done. As you can see, sometimes there certainly is something important to be done.