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Friday, September 30, 2016

Only my name is on the title. Will my wife get my house when I pass away?

I'm always glad to see questions from people who want to clarify their situations. It's so much better to find out important information while you still have a chance to act on it than it is to overlook potential problems, but it's not always easy to find specific answers.A reader recently wrote to me to ask about the title to his home:

"My wife and I bought a house after marriage. She was abroad on the closing date so the house title and mortgage only have my name on it. In this case are we joint tenants or tenants-in-common? If I pass away will my wife automatically becomes owner of the house without my will?"

You are neither joint tenants nor tenants-in-common. You need more than one name on a title to be either one of those things, and you said only your name is on your title.

Whether or not your wife would automatically gain ownership of the home is not going to be based on the title, since the title as it stands gives her nothing. However, there are other factors that could result in her becoming entitled to own the house even if you don't have a will, such as:
- you pass away leaving only your wife and no children, and your whole estate passes to her, with the house being part of that;
- you live in a province which treats the matrimonial home as joint property where the sole owner spouse dies, or one in which she can elect to keep the home.

You would create a lot more certainty and peace of mind by having a will prepared in which you leave the house to your wife. Remember that the contents of a house are not part of the title and be sure to deal with those as well.

Another option is to change the title on the house to something that suits you better. The fact that it was set up so that  you are the sole owner doesn't mean that it always has to be that way. You can transfer the house into both of your names at any time. Money does not have to change hands.If you changed the title from your name into a joint arrangement with your wife you would be able to achieve your stated goal of having the house pass to her on your death.

I would caution you that I can't really tell you whether changing the house into joint names would be a good idea in  your case. I just don't know anything about your financial position, debts, risk of litigation, tax exposure, pre-nuptial agreement, family arrangements or anything else. If you think that putting the house in joint names is a good idea, I urge you to consider it in the bigger picture. Don't think of the house on its own, but instead think about it as one piece of your financial picture to ensure that you don't create new problems just by changing the title.

6 comments:

  1. Hi Lynne,
    My brother is the executor of my mother’s estate. There have been many shenanigans in the last four years with my 96 year old mother’s monies. Now my brother has made himself Joint on all of her banking accounts and investments. She had seven children and often said that her estate was to be divided equally amongst her children. She has now died and I fear the worst. We have attended my mother’s funeral and she has been gone three weeks. My sister and I, who live in the city of St. Albert Ab, have yet to hear from my brother, who lives in northern Alberta, with regards to the will. Furthermore, we are not on very good term. Is it true that he can just take all of her estate because he is “Joint”? I know my mother gave him joint to help out with the running of her estate…and not for him to solely inherit. Is there anything we can do?

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    Replies
    1. Hi Michelle,
      Don't panic yet. It's early days yet. When the executor sends the notices to the beneficiaries, he usually includes a copy of the application for probate, and it takes more than 3 weeks to put that together in most cases. This doesn't mean you can't call or email and ask whether everything is fine and if there is a way you can help.

      No, he cannot take the estate because he was a joint owner, unless of course the will says that he is to have joint assets. Where a parent owned an asset and later added a child, the asset is considered in law NOT to be a joint asset unless evidence can be produced as to the intention of the parent at the time the child was added. Legally, your brother must be holding the assets in trust for the estate.

      If this doesn't happen, get a good estate lawyer immediately. Don't get someone who dabbles in estates; you need someone with a good understanding of the issues surrounding joint assets.

      Lynne

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    2. Lynne, In your title response I think one also has to consider probate fees can be added if the spouse is not on title. On a $1M home that can be an unnecessary government contribution.

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    3. Michelle,

      While your mother may have stated that her estate was to be divided equally among her children, ultimately, it is what she had documented within her will that has any bearing or relevance. Hopefully, what she indicated in her will is as she had told you.

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  2. The real answer is NO!! YOU MUST PUT YOUR SPOUSE ON TITLE IMMEDIATELY!! MOM 97 LOST HER MATRIMONIAL HOME AS A DIRECT RESULT OF DAD ONLY PUTTING IN HIS WILL!! Unless you hate your spouse it's cruel & inhumane to not get them on title.

    ReplyDelete
    Replies
    1. I appreciate that your response is based on your personal experience, Trudi, but sometimes there are reasons for only one spouse being on title. For example, many couples put only one name on the title when the other is in business. This is to protect the house in the event that the one who is in business is sued. In other cases, one might have debt that is secured by the house and does not want to involve the other in the debt. Different solutions and steps fit different situations.

      Lynne

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