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Tuesday, October 9, 2012

House in the wife's name only - what if she passes away?

Most married couples own their homes as joint tenants, so that if one of them passes away, the other one automatically owns the home. This arrangement helps to give assurance that the surviving spouse and the family's children will legally and financially be able to continue living in the home.

But there are sometimes reasons why couples set up other arrangements. Often those reasons are related to finances or poor credit, but it could also be to avoid unwanted legal consequences or to protect assets from potential creditors. Not owning the home jointly may be the best arrangement available for a particular couple, but it tends to leave them wondering about who would own what should one of them pass away.

A reader left me this question about their home:

"After being married for almost 3 years, husband and wife put down payment together to purchase a house, but the title of the house is only under the wife's name. What will happen if the husband or wife pass away during marriage?"

If the husband passes away first, really nothing is going to happen about the house, as he doesn't own it. If the wife should pass away first, the answer could be much more complicated. Here are some of the factors that would be taken into consideration when dealing with the home:

Did the wife leave a will? If so, the will should address the question of what is to happen with the home. She might have left a will leaving the house directly to her husband. More likely, she may have left a will leaving her entire estate to her husband. If she has left the entire estate to him, that will of course include the house. Her will might also have done something entirely different, such as putting the house into a trust for their children, or directing that it be sold. The will should also address the household and personal items in the home.

Does the couple live in a province with Dower rights (such as Alberta)? If so, the Dower Act states that on the passing of the wife, the husband would have the right to live in the house for the rest of his life. He would always have a roof over his head, but he would not be able to sell or mortgage the house as he would not own it.

Who else is in the picture? In the absence of a will, the husband would receive whatever the law of the province of residence says he will receive from his wife's estate. He may have to share with the family's children and/or with any children the wife had in a previous relationship. Intestacy laws tend to work on fractions as opposed to specific assets, and would not necessarily include or exclude the home from the husband's share.

Is the husband adquately provided for, either by the wife's will, or by intestacy law? All across Canada, surviving spouses have the right to claim a larger portion of an estate if they have not been properly provided for. This is true whether or not the deceased spouse left a valid will behind. The husband might launch a claim of this sort and through that receive the house. Again, this might depend on who else is in the picture with competing claims.

Does the wife have a lot of debt? Depending on the type and amount of debt, the house might have to be sold to pay the wife's liabilities. Debts and taxes must be paid before any beneficiaries receive anything from the estate, even if that means selling the home.

Is the husband in bankruptcy? If so, his inheritance, including the house, may be seized by the receiver and used to satisfy his debts.

As you can see, nothing good is going to happen without some effort by the wife to protect her husband in the event of her death. She should prepare a will that sets out her intentions for the house. She should also speak with an estate-planning lawyer in her province who can inform her more specifically about her options and consequences.


63 comments:

  1. Thank you for posting this article. These are important tips to know when about to buy a home. My husband and I are joined tenants. I love this because if a tragedy ever does occur I know that I will still have a place to live with my name on it. The estate lawyers in vancouver can help you make the decision on what you want to do when putting a payment down on a house. Thanks agian.

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    1. You're very welcome Dorthy. Thanks for your comments about the lawyers - that is exactly the role a lawyer should play. It should be someone to pass on legal information and give you the benefit of his/her experience to help you set up your legal arrangements to avoid problems.

      Lynne

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  2. Married, no children, husband has an adult child. No relationship with her, my name isn't on house, he also has business debts. If he passes before I and he doesn't have a will. What happens to house do I have to sell To pay off his debt??

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    1. The answer to this question is going to rely in large part on which province you two live in. This is because the marital home is treated differently than other assets. For example, if you lived in NL, the house would automatically be considered to be jointly owned and it would transfer to you regardless of debts. If you live in AB, you would automatically have a right to live in the home for the rest of your life. In Ontario, you'd automatically be entitled to live in the house for 60 days after his death, then you'd have to go through the equalization of assets formula to see what you'd have.

      Lynne

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  3. this opens up what if husband name on house, but I pay the full mortgage or we share the mortgage payment, and financial rights? if he dies first, or that doesn't matter either? thank you for your post, will see an estate planner to be sure we are protected.

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    1. It's definitely a good idea to see an estate planner. People get pretty upset when they realize that land titles registries are only concerned with ownership of land, and not who might "really" own it because of who made payments.It's really essential to have everyone's rights set out and protected legally, and not to rely on unwritten, informal arrangements that will give you no legal help whatsoever.

      Lynne

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  4. Mrs Buttler, I have a question not really concerning a will but it's somewhat related to this topic: I have some unpaid debts, and we are planning to buy a house. If the house is solely under her name, can the creditors come after the house ?

    Thank you.

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    1. I assume that when you say "her name" you mean your wife. No, creditors cannot take someone else's property to satisfy your debt. If the house goes into joint names, that's a different story.

      Lynne

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  5. Hi Ms Lynne,thank for your post its help me to know the law,but i would like to ask for some question if you dont mind,about the right of wife,we got married 2015,and bring me here in Canada,but suddenly we are not good in situation,and I don't know what to do,I have no one family in this country except my husband who bring me here,thank you

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    1. Everyone is welcome to ask questions here. However, I don't do family law and I don't answer questions about divorce, child custody, etc. I stick to what I know, which is wills-related. I welcome your questions on those topics.

      Lynne

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  6. Hi Lynn. In BC, to what is the surviving spouse entitled regarding the marital home(in the deceased spouse's name)if the deceased spouse has left it to his/her adult children?

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    1. I would like to know this answer to this question as well.

      Delete
  7. I have a question. Me and my husband own a house. We put his parents name in mortgage support only for 1 Year. We are having renewal soon. My husband now told me that he would not take out his parents name property is 48 percent in parents name and 52 percent our name what should I do? I do not want his parents name on our property because he has one sister so she can stand anytime for her share. But in reality it is only my and my husband income spent on this. This is the only property we have together and we have one son. They all are mentally harassing me that they won't take out their name. What should I do?

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    1. There's not much you can do. It's all very well to talk about "putting a name on" property but in reality, adding a name creates legal ownership rights for the person added. You can't just take away a house a person owns. It doesn't matter that's it's "really" yours because the title of the house says that they own 48%. It was a mistake that you and your husband have to live with until everyone agrees to change the title again.

      Lynne

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  8. Question: Both parents lived in same home but house was put into my morher's name because dad had a gambling habit. Now that my mother has passed, how do I go about putting my parent's home back into my father's name? She had a will that states everything goes to my dad. But do I have to have Grant of probate or can I fill out the necessary paperwork to do this?

    ReplyDelete
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    1. If the house was in her name only, you are going to have to go through probate. If this is the only asset and the estate is not complex, look for a DIY kit that you can use. Self-Counsel Press has kits for Alberta, BC and Ontario. I have one for NL available on this blog. Other than those provinces, I'm not sure if there's a kit out there.

      Lynne

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  9. A Question: My father, in Ontario, died six months ago. He had no will. The house was in his name only. His wife has nothing but contempt for my adult siblings and me. We were very close to our father, however. We are in BC. The house is really his only asset. Does his wife have claim to all of it? We've heard nothing from her or anyone else. Thank you.

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  10. I bought a house on my own with my kids. My boyfriend at the time decided to live with me...but did not contribute to downpayment...a few months later...we got married...he helped with some bills but not the mortgage. Only my name is on the house. I am still the only one paying the moetgage and insurance...if anything happens to me or ww divorce...are my children entitled to my house oe can he kick them out as they are from my previous marriage

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    1. It depends on which province you live in. The laws are surprisingly different from one province to another. In my province (NL) for example, it doesn't matter whose name is on the home if a married couple lived there. In that case it goes to the surviving spouse. This is not the case everywhere. In my book, "No Nonsense, real life guide to estate planning in Canada" I included a chapter on what happens to the matrimonial home in every province and territory.

      Lynne

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  11. I have been dating my husband since 2000; I included his name on my immigration so Canada knows I am legally married. We got married April 2010 in Cape Town, South Africa. I purchased my house in January 2011. He has never been to Canada, though I have filed for him to come. Now, my questions are: how can I protect my self and our son against divorce? Can I transfer the title of the house to my son? What are the tax consequences? I don't know if Ontario laws says he own half regardless of the name on title or mortgage . Note: he never contributed anything. I have documents that show I sent him money regularly. Thanks

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  12. Hi Lynn, Im from Ontario. My dad just passed away, left a will stating everything will pass to my mom and I am the executor. However, the house is only in his name. Consulted with a tax lawyer, was told that the will will need to go through probate and the house need to be "sell" to my mom, my mom needs to pay capital gain tax on this "sell". That will be a gigantic capital gain taxes as they bought the house 50 years ago. Is that true? If so, that will create a substantial burden to my mom as that's the only asset left from my dad. No cash to pay for any of those taxes and fees and my mom will be forced to actually sell the house that they have intended to live for the rest of their lives. Can the house just be transferred to my mom after probate?
    Thx.

    ReplyDelete
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    1. The part that doesn't make sense to me is why there is capital gains tax on the property if the property is the only asset. There may be some facts missing here.

      Each of us is entitled to have one principal residence. If there is only one property, then that should be, by default, the principal residence. Your question seems to state that this property was the family home in which your parents resided, and was their only property. If those facts are true, I don't see why there is capital gains tax. Did your dad own any other real estate at all, either in his own name or jointly with anyone else? Was the house rented out to anyone?

      I'm wondering what facts I'm missing since a tax lawyer should be able to figure out pretty much instantly whether a property qualifies as a principal residence or not.

      I would definitely consider getting a second opinion. Rather than seeing a tax lawyer, see a wills and estates lawyer who does a lot of probate work. See if you get the same answer once that lawyer looks at the will and takes detailed information about your father's assets.

      Regardless of the outcome of the tax question, you will still have to go through probate. That is not because of the tax. That's because the property is only in your father's name and nobody has the legal authority to transfer or sell it without the grant of probate.

      Best of luck. Let me know what the second opinion says.

      Lynne

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    2. Hi Lynn, Thx for your time to reply. I am sorry that I didnt say it clearly. This is only assest that under my dad's name. My parents bought this piece of land like 40 years ago and it was just a piece of land and they lived somewhere else in Ontario. Then they built their retirement house on it and they have lived there since 1995. The land is about 80 acres which cost only about 10000CAD 50 years ago. We first went to an estate lawyer who told us that we need to have the Will probate and he also saw that we might need to pay the capital gain tax but the reason he gave us was that since my mom's name is not on it, It will be considered to be a "sell" to my mom. But I said that it's their primary residence for the last 20+ years. But he said we might have to pay the tax on the years before my parents treated it as primary residence. That was very confusing to us and very complicated. Then we went to consult a tax lawyer. He told us that even though that's a principle residence, the maximum size allowed to consider to be principle residence is 1/2 acre. The rest will need to pay capital gain tax. The formula he showed us seems very unfair and complicate as well. But the estimation for all the taxes and fees involved at the end was over 100,000CAD!! We are in shock!! And that's why we need to stop there as my mom cannot handle the pain of losing her love one and the unexpected financial issues. Now, I am wondering how long can I wait to do the probate and deal with this tax issue. I already file my dad's 2017 income tax except this capital gain issue. Thx Lynn.

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  13. Hi my wife,who's name is on the title of our house(which has full equity) made some serious financial mistakes putting her into high debt. If I remove her name from title (she agrees ) would creditors still be able to access equity? (In the case of consumer proposal or bankruptcy?) We are in BC

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    1. This really isn't something I have particular insight into as it's not within the area of law I practice. Check with a trustee in bankruptcy.

      Lynne

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  14. Hi Lynne, am very confuse about the will....My husband is strongly against us having to make a will. We've had arguments about this alot. The house is only under his name, due he brought the house before we got married in Ontario. He insisted if anything should happen to him, the house will automatically default to me and my 4 childrens. Is he right about this?

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    1. He is sort of right. If your spouse dies without leaving a will, you can choose whether to claim an equalization payment or inherit your share according to the intestacy rules. These rules give married spouses and children the right to inherit property when there is no will.

      When one spouse dies, the surviving spouse is entitled by the Family Law Act to possession of the matrimonial home for a period of sixty days following the death of the first spouse.

      I don't really understand why someone would be so opposed to making a will.

      Lynne

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  15. Hi Lynne,
    My partner's father passed away 20+ years ago, leaving the house to her mom. She has since remarried, but stated in her will that her kids get the house (the deed of which is still in her & her 1st husband's nsme.) Prior to her passing last year, she and her 2nd husband had a document drawn up, again stating that the kids get the house, but he can stay there for at least 6 months (amoung other issues, mostly concerning some debts). She was concerned that his kids would ultimately end up with the house. She has now passed and things are turning ugly...apparently they want to contest the will. Do they have any grounds to do so? This is in Onterio.

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  16. Hi Lynne, do I need to add my spouse to the title of any property I own to ensure that it is transferred to her if I die, or can I just do that through a will?

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    1. Hi Brad,
      You can do it through your will. As a general rule, when the property is jointly owned between two spouses, there is no need for probate to take the other one's name off after he/she dies. The same property might have to go through probate if it is left to the spouse through a will.

      This will depend in part on whether it's the family home or a second property such as a cabin or rental property.

      Lynne

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  17. Hi Lynne

    My spouse died 2 weeks ago and now they tell me that I have to pay to get my name on the property that was our matrimonial home. Only his name was on the property what are my rights. We have a will drawn and he stated that I get all his estate. So why are they talking me it going to cost me money to get my name on the property.

    ReplyDelete
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    1. Who are "they"? When "they" say you have to pay, are they talking about legal fees? Land transfer fees? Paying out the mortgage? Buying a share?

      If the will is valid and leaves you the house, that means you have the right to inherit the house. But that doesn't mean that the paperwork is all done for free. There are always costs associated with an estate.

      Is this what you're talking about? I'm guessing, based on the information you've given.

      Lynne

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  18. Do I legally have to remove my recently deceased husband's name from our joint home title deed. His will states that everything of his goes to me. So can I just leave his name along with my name on the home title deed and save legal fees to remove his name. Thanks in advance for this information. Kind regards, Eileen Lindsay

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    1. You can leave his name on it and live there. However, there are potential consequences. One is that when you pass away, your executor may have to probate not just your will but your husband's will as well, just to sell or transfer your home. While you're alive, you can do that without probating his will (if you and he owned it jointly). So it's going to cost your kids more in the end if you leave his name on. I have to qualify this answer by saying that the processes are not the same everywhere. Here in NL, we can leave the husband's name on and do the entire transfer in one when the wife passes away but this is not the case in most places.

      Check to see whether your province has land titles forms online. It might not actually cost that much to remove his name if you can do it yourself.

      Lynne

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  19. Hello Lynn, please answer my question. If the house is under my name completely and if the other spouse that have kids from previous marriage deceases, do I need to sell my home to share with the spouse's kids? Or do I get to keep the house? Ontario. Thanks

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  20. In Alberta and matrimony home in husbands name only. It us part of his estate in our will but I'm wondering about selling. We are nearing retirement and talking of selling as we own another home also. Can he sell without my consent? also when we do sell can the proceeds have both names on chq and last can he get a reverse mtg without my consent. Weve lived here 22 years and married 31 years. Just a but worried as this is free and clear title. Thanks

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    1. If the property is a matrimonial home, it cannot be sold or mortgaged without your consent. I'm not an expert on real estate law and in fact I have avoided doing real estate work for years now, so you'd be better off asking a question about the name on a cheque to someone who practices real estate law.

      Lynne

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    2. My situation is similar. I own my home and have significant equity. When my partner and I marry this year, my home becomes marital property (Ontario) and he is entitled to half of my equity in the event that we divorce. If he were to pass away, will his half of the equity be included in his estate? Will his son have a right to claim some or all of this equity? Can his ex-spouse who is the legal guardian of said son have a right to this equity?

      Delete
  21. If I buy a house in alberta by my own money as a wife, and my husband did not pay anything, does he still get half?

    It is 100% my effort, so how can I protect my asset. I know he is my husband, but it is my own house I worked day and night to buy it. Please help. Thanks,

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    1. Have him sign an agreement to waive any interest to that asset.

      Lynne

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  22. just wondering when I can receive a response to my comments in Alberta in regards to sale of matrimonial home. You seem to have skipped over my questions. Thanks

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    1. Sometimes that happens. Each day's new questions arrive in my inbox and I start at the top and answer as many as time permits. When they show up here on the blog they are on all different threads and it looks like I skipped a question.

      Lynne

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  23. Question
    If the home is only in my name and I die. With Morgage still owing. Is she given time to assume the payments? Does she have to apply for a morgage herself now?

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  24. If the house is only in my husbands name and I die first would my children be entitle to to what would be my share of the house. We were married when the house was purchased and have had it for over 20 years. We live in BC

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    1. If you die and your husband survives you, you no longer have any interest in that house. Your husband could sell it if he wanted to. No, your children would not automatically be entitled to a part of the house based on the idea that you owned some of it.

      I'm not going to get into a discussion of whether your children have a right to inherit something from you or from your husband, since I don't know their ages, disabilities, or anything else about them, so I am sticking to the exact question you asked. If you die, no part of the house will automatically go to your children.

      Lynne

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  25. Hello and thank you for your assistance. I am the husband and am the sole owner of my home. My will states that my wife will inherit the family home. I do have a mortgage on the home. Is there a benefit to put my wife on the title? If I do not do so, will she have any issues if I die with regard to estate tax? I only have one property. Would it be better to place her name on the title? If so, is that a difficult process? Thank you again.

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  26. Married, two adults' sons, live in Ontario, my house by my name only, I paid the down payment (as a gift from my family from back home) I pay all the bills and full mortgage. I need to pass the house to my sons directly after my death. What is the best thing to do so? My understanding from your explaining above, is to put the the house into a trust to my adult sons (age 30 and 29), is that will by pass my husband's right in my house? i don't own any other property. Thank you so much

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  27. Married for 4 years and my mother wants to put the house under my name since that house I contribute a lot when I was single. I don't want to accept because what if I passaway first what happen to them. That house will automatic go to my husband? I don't want them to stay in the street. What should I do?

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    1. If you and your mother own a house as joint owners and you pass away, she will then own the whole house by right of survivorship.

      There are two ways that your share of the house could go to your husband. One is that you and he live in the house as a married couple and you happen to live in a province which gives special rights to a spouse over the matrimonial home.

      The second is that your mother adds you as a tenant-in-common rather than a joint owner and you don't have a will, in which case your half of the house would go to your husband.

      This is worth a discussion with a lawyer local to you.

      Lynne

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  28. am in the same boat. We live in Ontario. Hubby has a boy from first marriage n we both have also 2 boys together. I pay my share for the mortfage but he didnot put my name in the title of the house n also my car's ownership is under his name as I did not qualify for a loan cz of inconsistency of my work. What rights do I have? Why would he do that when I pay my share? Any suggestion what should I do? Thanks

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  29. Hi we married couple we bought a house 5years ago in Alberta. But the house is only by my husband name.so if anything happens can I be own the house.we have 4 kids together thank you.

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  30. Me and my husband just bought the house. We both paid the downpayment from our separate savings. He uses his mortgage as he is in charge of monthly mortgage and I'll be in charge with the rest of the expenses. During the process of buying he was the only one that dealt with the legal documents while I take care our child. Before moving in I found out that the house is only under his name. I wouldn't thought it will be the case because Iif I happened to be the one dealing with the legalities his name will be automatically in there. I was deeply hurt. Is my feelings valid or overreacting?

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    1. Hi. I'm not going to comment on the validity of your feelings simply because I'm a lawyer and our work is not about feelings.

      However, it does seem odd that your name is not on the paperwork. It could be as simple as your husband understood that he'd be taking care of signing etc and therefore told the lawyer that he was the only person involved. The opposite side of the coin is that he deliberately left you off the title. The usual case for most people is that they really don;t think it matters whose name is on there when you're married. Not having met him, I couldn't say which is more likely.

      Right now, you are not an owner of that house. That doesn't necessarily mean you have no rights at all if your marriage should fail or your spouse should pass away. Some provinces recognize the special nature of a matrimonial home and protect a wife's right to be an owner even if she isn't on the title, and other provinces don't.

      The most important things are a) that you and your husband understand the different ways to hold property (e.g. jointly, tenants in common), that b) that you agree on which is best for the two of you, and c) the title actually reflects the intentions of the people involved.

      If a lawyer was used for the transaction, you and your husband can book a brief consultation with him or her - only needs to be 15 or 20 minutes - to talk this over.

      I'd stay on it and get it straightened out.

      Lynne

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  31. I have a question. My husband and i have three kids. When we applied for our mortgage i was a student and not working at that time so we were told that only my husband can apply for the loan. My name is not on the home. Since we are living in ontario what would happen to me and the kids if he left us. Would we be able to live in the house or should i buy a house of my own?

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    1. I would think it would be easier and cheaper for him to make a will leaving you the house than it would be for you to buy another house.

      Lynne

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  32. My husband and I own our matrimonial house, full equity, in both our names. Our daughters had saved down payment for a property but insisted it be in their father/ my husbands name. This way should something go wrong with their individual relationships, their property is saved. My daughters will live in the house and pay for the mortgage and all the bills. If my husband creates a will , leaving that house in the daughters name should something happen to him,, while still mortgage on it, is it as simple as that?

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    1. It is actually pretty simple. Making the will is a must. A good choice of wording is for your husband to leave his "right, title, and interest" in the house to them, as opposed to just leaving the house to them. This way, there is no confusion or suggestion that the mortgage is involved, as your husband is not the one paying the mortgage.

      Lynne

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  33. Hi Lynn. My husband and I are going to sell the current house, then buying two separated houses under each own's name. We will physical live separated. I would like to make a will to my own son to give my son 100% of this my own title property. I wonder if my husband is eligible to get anything about my new property after I make a will to my son? I don't want to leave a penny to my husband's since we split the joint house 50/50 when we sell it. We don't have any child together in this marriage. I wanna leave all my property to my son only when I pass away.

    Thank you Lynn

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    1. I don't see anything based on what you've told me that would indicate your husband would be entitled to anything.

      Lynne

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  34. Hilyne my question is i bought my house n the title is under my name alone..niw if j die can my husband can sell the house?on my my will i put the name of my son that my house belong to him ..thk u pls answer

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    1. Ok, so I guess you didn't read my post. Some things to consider: in some provinces, spouses have special rights to the house the couple lived in. In other provinces, they don't. So that will depend on which province you live in. If you are NOT in a province that creates rights for your spouse, then your will leaving the house to your son should work.

      Just out of curiosity, when you made your will, why did the lawyer not discuss this with you? It seems a pretty important point not to skip.

      Lynne

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  35. Does Nova Scotia create rights for the other spouse? If my husband is not on the deed, do I need anything from him in order to sell the house? Thank you.

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    1. Since I do not do any matrimonial law, I am not going to discuss any rights that may arise on divorce or separation. That's just not my area. I'll stick to what happens on death.

      As I understand it, yours is the only name on the title, and you are asking what happens if you pass away. In Nova Scotia, the house would not automatically transfer to your husband on your death. He would have the right to ask the court for an order that he can live in the house for the rest of his life, but would not have ownership rights. This assumes, of course, that this is the house you live in as a married couple and not something like a rental property.

      Lynne

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