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Sunday, April 27, 2014

Do I still need a lawyer if my spouse's will names me, RRSPs name me, and property is joint?

When a husband and wife name each other in their wills, designate each other as their beneficiaries, and own joint property, does the survivor of them still need to hire a lawyer to administer the estate? A reader asked me about this. His question and my answer are below:

"My wife has passed away and I am the executor of the will. There are no provisions in the will for beneficiaries other than myself. There are joint accounts with me and RRSPs that I am beneficiary of. All property was joint owned with me. Do I need to hire a lawyer to administer this will or is it simply do everything myself according to the will?"

The situation you are describing is as simple as an estate can be between a husband and a wife. This is exactly what most couples aim for when they do their estate planning.

Based on what you have said, there should be no reason for the will to go through the probate process. The joint accounts should pass to you by right of survivorship. There should be no issues or delays with that, as there would be if a joint owner were one of the children. Similarly, the RRSPs should be paid to you without problem.

I don't see any reason for you to hire a lawyer. As I mentioned, married couples set up their financial affairs this way to keep things simple and inexpensive if one of them passes away. I would suggest that you consult an accountant to see whether you must file any tax returns on behalf of your wife or her estate. Most likely you will have to file at least a terminal return for your wife.

To deal with the financial assets, you should sit down with your banker. Provide a death certificate and a copy (not the original) of the will. Ask them to change the name on the joint accounts and to pay over the RRSP.

You mentioned that "all property" is joint with you, and I'm not sure whether you are referring to real estate. If you mean real estate, you can remove your wife's name from the title without probate. Take a death certificate to the land titles registry and ask them for the forms you must fill in and sign.  Don't forget to do this. I have run into many widows and widowers who never did take their spouse's name off the title. It may make no difference to them, but causes a problem when they pass away. The executor of the widow/er's estate would have to probate both the widow/er's will AND the will of the spouse who passed away first, just to sell or transfer the house.

Finally, once you have dealt with all of these matters, I suggest that you talk to your lawyer about updating your will, Enduring Power of Attorney, and health care directive. Now that you no longer have a spouse who would take care of legal and financial matters if you pass away or lose mental capacity, you will have to choose someone else to name in your documents. It could be one of your children, or even a trust company. Don't worry if you are not sure who to choose or even which documents you need; an experienced wills lawyer will discuss this with you and give you some ideas.

1 comment:

  1. Hi Lynne,
    Regarding joint real estate between husband and wife, you explain a widow/er can remove a spouse from title of a home through the land registry office without probate. If this is not done, upon the widow/er’s death, both the wills need to go through probate by the executor to sell or transfer the house.
    My question is what happens if the joint owners (husband/wife) both pass away and the executor (their adult child) passes away also, without any changes to the title and it remains in the husband/wife’s names. The husband/wife’s wills never went through probate, and the adult child was their sole beneficiary. Also, what happens if the adult child was not the sole beneficiary?
    Thank you for your answers.


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