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Tuesday, July 6, 2010

What happens when a tenant-in-common dies?


In this blog, I've mentioned a few times (and will mention many more times, I'm sure) what happens when a joint owner of property dies. However, I was recently asked what happens when a tenant-in-common dies.

A major difference between joint owners and tenants-in-common is that joint owners automatically have a right of survivorship to the entire property. Even though there are two or more joint owners, they are all considered owners of the entire property, as opposed to a half or a third. There are no halves or thirds with joint owners.

With tenants-in-common there ARE halves and thirds (and other portions). Each person owns only a portion of the property, according to the Transfer of Land document that was filed with the Land Titles Office when they acquired the property. There is no right of survivorship with tenants-in-common because each owner owns his or her section only.

It's possible for two people to be joint tenants of one portion of a tenancy-in-common.

When a tenant-in-common dies, his or her portion of the land is dealt with like any other asset that is in that person's name alone. Hopefully the person has a Will which sets out who will get his or her property. If not, there will be an administrator appointed by the court. Whoever is the beneficiary of the estate will become the new owner of the deceased's portion of the property. The portions of the property owned by the other tenants-in-common are not directly affected.

When deciding whether you want to own property as joint owners or tenants-in-common, or whether you want to own real estate together with other people at all, you really do have to think through the likely scenarios you might encounter. For example, if you own 1/3 of a house as a tenant-in-common and you want to sell your share, how do you get out of the arrangement? How do you sell 1/3 of a house? Are the other tenants-in-common in a position to buy you out?

If a new owner does join the tenancy-in-common because he or she has inherited someone's portion, how will the other owners interact with that person? Will they be able to agree on issues such as whether it should be sold, who should live in the house, etc?

There are pluses and minuses for different possible arrangements, and each comes with its own set of owner's rights. When I ask clients about their ownership arrangements, the vast majority say that they don't know whether they are joint owners or tenants-in-common. You should make sure that you thoroughly understand your own situation.

63 comments:

  1. My brother and I were left my parents' cottage upon their death. We are tenants in common. My brother wants me to buy his half. I cannot afford to do that and don't want to lose the cottage that my father spent 40 years building and which was his pride and joy! Can my brother make me sell the entire cottage so that he can claim his half of the money?

    ReplyDelete
  2. Some investors in Tenant in Common TIC commercial property investments have found that they are now always as promised. If you have invested in a TIC, and now are not receiving distribution payments, have tenants that are not paying rent, have bad property management, or are facing cash calls or foreclosure, please contact my law office for a consultation. Some people can recover money for tenant in common investments sold in violation of securities laws, or with material omissions and misrepresentations, or without proper due diligence done on the property.
    Best,
    The Law Office of Daniel Bakondi, APLC
    danielbakondi@yahoo.com

    http://www.danielbakondi.com/Tenant-in-common-investment-tic-property.htm

    ReplyDelete
  3. I haven't dealt with this lawyer whose contact info appears in the previous comment, so I can't vouch for him personally. But I've been hoping to find more resources to do with problems with property, so I'm posting his info in case he is able to help any of my readers. Let me know!

    Lynne

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  4. Dear Lynne

    I have just been advised there is a good possibility that my estranged boyfriend may have sold his half of our house to his sister to avoid having any assets. (we have the TIC arrangment)

    Can he do this without my knowledge?

    thank you

    ReplyDelete
  5. Yes, a tenant in common can dispose of his/her share without the consent or knowledge of the other tenant(s) in common. Now keep in mind, I don't know the bigger picture. The fact that you've said he is avoiding having any assets makes me think there is more going on. A general statement as I've given in my answer here is just that - a general statement. If you're involved in other issues, hire a lawyer and tell him/her the whole story.

    Lynne

    ReplyDelete
  6. my husband recently passed away and his youngest son thinks all of his fathers belongings now belong to the estate. He wants to take furnishings and other stuff out of our matrimonial home. What is the legal definition of "estate"? Is my stepson entitled to take whatever was his fathers?

    ReplyDelete
  7. My husband and I are Tenants in Common on a recreational property.

    Although we have been together for 20 years, my husband will not show me his will (he has 3 children from a previous marriage) He indicates that he wants to will his half of the property which is totally acceptable. A lawyer told me that there could be a risk that his will could override my 50% ownership of the property as it is not joint tenancy so there are additional risks with TIC and ownership does nto have survivorability. Do you have any knowledge of this happening in previous cases....?

    ReplyDelete
  8. Hi,
    No I don't know of any cases like that. Your husband, as a tenant in common, can't do anything with your half of the property that you don't agree with.

    The survivorship the lawyer was talking about is the right of survivorship that is part of joint tenancy. Where there is a right of survivorship, the last joint owner alive gets to keep the property. You're in a different situation because you own your half outright.

    So while I believe your legal title is safe, please think about this situation in a practical way. What if your husband dies, leaving his half of the property to the three kids. Do you really want to share a house title with them?

    Lynne

    ReplyDelete
  9. Hello Lynne, thank you for the informative blog. I have been reading it on and off since my grandmother passed away in March of 2011.

    My mother, uncle and aunt are 1/3 beneficiaries of the estate, and the house my grandmother shared with her partner was owned tenants-in-common, with each of them getting 1/3.

    The estate lawyer is telling my mother that my grandmothers name will continue on the deed until such time as her partner dies or sells. This could be years, and my mother is worried that something fishy is going on here.

    My question is, can a dead person own property? It was my belief that the 50% of the deed would transfer to the beneficiaries names, alongside the partners 50%.

    thanks again

    ReplyDelete
  10. Hi Gabriel,

    No, a dead person can't own property, but his or her estate can. When someone owns property there are two separate steps that are taken to give or sell that property to another person.

    Step one takes the property out of the name of the deceased and puts it into the name of the estate. That first step is called transmission.

    Step two takes the property out of the name of the estate and puts into the name of the person(s) buying or receiving the property. That second step is called transfer.

    Perhaps what the lawyer actually means is that your grandmother's half of the property is going to be kept in the name of her estate.

    The interesting question to me is WHY her name is being kept on the title. As a tenant-in-common, she could dispose of her half on her death regardless of what her partner was doing with his or her half.

    So why would it be happening this way? I would first look at the will. Perhaps your grandmother specified in her will that her half be held in trust until her partner sold his half or died. This would not be unusual, as many people try to make sure that their partner won't lose the roof over their head.

    Your mom and the other beneficiaries should ask for clarification of exactly what is being left to them, and under what circumstances they are to receive it. I strongly suspect the will has more in it than they know about so far.

    Lynne

    ReplyDelete
  11. If a widower with adult children (living elsewhere) remarries, what is the spouse's rights if her name is not on house title, and house is willed to his children? Is it legal for widower to add a trust in will indicating spouse has right to continue living in home for next 5 years? Is that the extent of her rights as surviving spouse?

    ReplyDelete
  12. do tenants in common have to protect their interest as a restriction if the land is registered?
    also if i want someone else to have my share for examplw trustees to hold on for a beneficiary will my trustees name be on the land resgistry documents?

    ReplyDelete
  13. I am married for just over 6 yrs to a widower whose four adult children no longer live in his house. His name is on title, mine is not. someone suggested he could include a line in his will that says I can stay in his house for up to 2 years after he's gone...Is this legal? Would i have the right to stay in the house that long, or at all? Does it matter if house is willed to each of his children, or if he wills house to be sold and proceeds divided equally between them? Can his children throw me out (his daughter might try).
    thank you for any assistance.

    ReplyDelete
  14. I currently have a 1/8 ownership in a property that is in a tenants in common ownership structure. One of the owners owns half of the property. Can I sell my share in the property to the majority owner without having to offer it to the other owners or have consent?

    ReplyDelete
  15. Can there be a TIC beneficiary named anywhere else other than a will? My ex died intestate leaving a house and TIC recreation property. My son (decease's only child) was under the understanding that his grandmother was named beneficiary of the TIC property but we don't know where to find that information. He discovered his father never finalized his divorce (2nd wife) from 10 years ago. She is now claiming the estate is hers even though she was paid in full 10 years ago and signed that she has no claim to the property.

    ReplyDelete
    Replies
    1. Hi Sharon,
      Wow, this sounds like a bit of a mess. The only place the TIC beneficiary could be named is in the will. When your ex said he meant to name the grandmother he must have meant he was thinking of making a will. You didn't say who the other tenant(s) in common are on the property so I can't conclude anything from that. It sounds as if the 2nd wife is relying on the strict letter of the law that says a wife is entitled to be supported financially by the estate of a deceased spouse. You said that she "signed that she has no claim to the property" but that can mean a couple of things. Simply receiving what is given isn't necessarily considered making a claim. But that is something a judge can decide with all of the facts at hand, including the fact that 10 years have gone by since the woman was actually his financial dependent. I guess everyone is wishing your ex had finished his estate planning but he's one of a huge majority of people who just never get around to it.

      Lynne

      Delete
  16. Hi Lynne, Thank you for this blog, its really helpful to me.
    I am signing a parcel of land which I inherited from my father,over to my son and daughter. Can I write up a letter of transferal and have it notarized by a justice of peace, or do I need to have a lawyer handle it?
    Should the transferal be under "tenants in common?

    ReplyDelete
    Replies
    1. Hi. You're welcome, and thanks for reading :)

      You don't necessarily have to have a lawyer to take care of a land transfer, in the sense that you can do it legally on your own. A letter of transferral, notarized or not, is not going to work. You have to use the proper transfer form provided by the land titles registry. You can either get that by going in person to the local land registry, or by going online to see if your province has a manual posted. In the "links" section of my blog, I've linked to the online manuals that I know about.

      A valuable reason to use a lawyer is to talk through the reasons for the transfer, and come up with any alternatives that might meet your goals. If you and I sat down to talk about this idea, I would express to you in strongest terms my reservations about putting both kids' names on the title. In my experience, asking two different people with different lives and different agendas to use one property is naïve. It usually turns out to be a punishment for the children, believe me.

      A lawyer might come up with other ideas, such as leaving the property to one child and equalizing the other with other assets or life insurance.

      In other words, the lawyer brings more to the table than knowing which form to use. Please think this transfer through, and talk to both of your kids (maybe they don't even want the land) before going ahead.

      Lynne

      Delete
  17. Hi Lynne,
    Regarding TIC with right to survivorship where the agreement is the survivor has right to exclusive use and is responsible for all household expenses and maintenance of the property. When the surviving occupant passes, is there a grace period for the occupant’s estate to deal with personal belongings and getting the estate in order before the carrying costs of the home are split between all owners or are all owners responsible as of the date of death? At what point do all owners have right to access the property?
    Jane?

    ReplyDelete
  18. what if there is no will for TIC and the property is not paid off yet. what then do I pay it off alone and the next of kin get the property once I pay it off..

    ReplyDelete
    Replies
    1. Perhaps. There are facts missing here. I assume that you are the other TIC. Did you and the deceased have separate financing arrangements? If you had a joint mortgage, then yes you have to pay it off. If you didn't have a joint mortgage, then you don't have to pay it off.

      If the deceased didn't have a will, then someone has to apply to the court to become the administrator of his estate. Who that should be is the subject of another post.

      The job of the administrator will be to use estate assets to pay the debts first. Hopefully there is enough in the estate to cover the remainder of the deceased's mortgage.

      Once the mortgage is paid off, the administrator will transfer the title that belonged to the deceased to his beneficiaries. Therefore you will be sharing the title of the house with someone in his family. Normally the house of the deceased is sold, but in this case you own half of it, so it's unlikely to be sold unless you choose to buy it.

      As I always remind people when they buy property, it's so easy to set things up, but so damn hard to get out of the arrangements when someone passes away.

      Lynne

      Delete
  19. Hi Lynn:

    My dad, my brother and I were on title as tenants in common.

    My dad passed away, leaving his share to my mom.

    I am the executrix and I probated his will.

    Today I applied with the LTO for the first transfer i.e. from the deceased to the Executrix of the Estate.

    I understand the second transfer should be from the Executrix of the Estate to the beneficiary i.e. my mom.

    In order to avoid future probate fees, we all want joint tenancy on the title.

    My question is:

    On the form A, can I put the following:

    Transferors - 1/3rd interest, because we were tenants in common in the first place:

    1) Myself, as the Executrix of the Estate
    2) My brother and
    3) Myself

    Transferees: AS JOINT TENANTS

    1) My mother
    2) My brother and his wife as joint tenants, and
    3) Myself

    THE ABOVE 3 AS JOINT TENANTS?

    # 2: My brother and his wife are joint tenants because if my brother dies, his wife can get his share automatically and we do not need to obtain a probate.

    The reason we want to do joint tenancy is to avoid an additional form A and $ 79.22 fees that we will need to pay if we first transfer from my dad's Estate to my mom AND then transfer from all 3 tenants in common to all 3 as joint tenants.

    Please let me know if what I am thinking is possible or not.

    Also, I understand that I will still be required to fill the yellow form FIN595S to transfer 1/3rd share from estate to my mom and pay no property tax as it is exempted (code 40) for transfer between the executrix to the beneficiary who is a related individual.

    Are there any notaries, solicitors or officers who can notarize the signature without any fees?

    ReplyDelete
    Replies
    1. So, your father left the property to your mother but YOU want it so you thought you'd put your name on instead. Why would that be legal?

      Lynne

      Delete
  20. Hi Lynn,

    Is there any way you can search if someone is tenants in common or joint tenancy. My Grandparents & Aunt lived in the same house. I was told it was a 50/50 split. My grandfather passed away 9 years ago, and my father passed away 5 years ago. I do not have contact will my family but my grandmother is still alive. This being said I know on the will the half of the house was divided into thirds ( my father, & his two sisters) My mother is also listed next to my fathers name on the will. This maybe confusing but I'm just trying to see the situation for what it is.

    ReplyDelete
    Replies
    1. Certainly. Go down to the local Land Titles Office or Registry and search the title. You can do this online in most places. The easiest way to search a title is using the legal description, i.e. plan number, block number, lot number. If you don't know those, you can get them by contacting the municipal tax department with the street address and asking for the legal description. Again, it might also be possible for you to find that information online.

      Lynne

      Delete
    2. My Mom was in a Hospice for 50 days dying of bone cancer brain and Liver.
      I'm joint Tenancy with my Mom on her property.My wife is POA and executor.
      My sister had the POA changed executor and the Joint Tenacy
      My Mom's name is on all the Bills who is responsible ?

      Delete
  21. Lynn,

    My partner and I were 50% tenants in common on the property we live in. My partner recently passed and has willed his portion to his three children from previous marriage. My partner also had mortgage life insurance that paid out all mortgage debt on the property including coincidently what would be considered my portion. Does the estate have claim to the portion of debt paid off that would have been considered mine originally? So if I had 100K outstanding on my 50% now that it is paid out by mortgage life insurance can the children ask for 100K from me upon sale as they believe it should be theirs? And can you advise if the mortgage life insurance falls outside the estate in the sense that that dealing is between the Bank and insurance company?

    Thanks!!

    K

    ReplyDelete
    Replies
    1. Your half is still your half. The fact that the mortgage insurance paid off the debt does not change that. No, the children cannot ask for the insurance money from you. The insurance proceeds were never part of the estate; they were the result of a private contract between the owner of the insurance policy and the company that issued it. It was never going to be cash in anyone's hands.

      I would point out, even though it's not specifically what you asked, that matrimonial homes are treated differently than other properties on the death of one partner. This is to help ensure that spouses don't lose their homes when their partner passes away. You didn't provide any detail about your relationship so obviously I don't know the details, but you might be entitled to more of the home based on your relationship. You might want to talk to a lawyer in your home province to make sure you're getting your full entitlement under matrimonial and estate law.

      Lynne

      Delete
  22. Hi Lynn,

    I have tenancy in common with my parents on our principle residence. My husband and I live with my parents and bought half the property from them. As per their will, I will own the other half when they pass away. Am I subject to any taxes at that point given the property is both my parents and my own primary residence.

    Thanks,

    CM

    ReplyDelete
  23. Hi Lynne,

    I am buying half of my parents primary residence and moving in with them. Should I perform this a joint tenancy or tenancy in common to trigger the least amount of tax payable once I inherit the property? What tax would I need to pay?

    Thanks,

    CM

    ReplyDelete
    Replies
    1. There is no tax on the transfer of a principal residence. So there will be no tax on your parents' share of the home when it transfers to you.

      As always, tax planning questions are best asked of accountants, since they know more about it than I do.

      Lynne

      Delete
  24. How can I access Canadian law concerning tenants in common as related to disbursement of property?

    ReplyDelete
    Replies
    1. The property laws are different in each province and territory of Canada. I would suggest that you start at a free legal research site called www.canlii.org. When you get there, you'll see that you can choose which province you want to research. Then click on "statutes and regulations" and it will give you an alphabetical list. Look for "Law of Property Act" and similar titles. Also, on that site, you can search words and phrases, which you might find very useful.

      Lynne

      Delete
  25. My spouse and I are tenants in common with a relative. She has moved to long term care. Another relative acts as her PoA for finances. Are they able to force the sale of the house while she is still alive? What about after she passes? Myself and my 4 siblings are the inheritors of the estate without specific mention of the house so does that mean I automatically own 10% more of the house, bringing my ownership up to 60%? What financial obligations does she have regarding the proprty while she is still alive? Thank you. Appreciate any information you can provide

    ReplyDelete
    Replies
    1. What is it with wanting all those names on a house? Your situation is a good reminder of why it doesn't work particularly well.

      There could be circumstances in which her representatives (POA or executor) could force a sale by using the courts. However, it would not be particularly easy since she only owns half the house and has no right to determine how the other half is dealt with. The circumstances might be, for example, if she had creditors.

      If she passes away and her half of the house is in the estate, for heaven's sake don't put everyone's name on it. You'll never have another moment of peace with all of those people owning a portion of the title. Figure out a way to buy out the other beneficiaries, or put the whole thing on the market. Trust me, you do NOT want to be a 60% owner of a house with 4 other owners (or 8, if they are married and decide to add their spouses to their slices of the pie).

      While she is alive, her representatives are responsible for all expenses that preserve the capital of the asset, which is generally determined to be fire insurance, property tax, and maintenance. She is not responsible for consumables such as internet, cable, light, water.T The same thing applies to the property if she passes away and some months pass before the house is transferred.

      Keep in mind that her representatives also have some rights to the house. As they are tasked with maximizing her estate, don't be surprised if they want to talk about renting it out, or about you paying rent on her half, etc.

      Lynne

      Delete
  26. My spouse recently passed away and I am now in sole possession of our matrimonial home.

    However, the home was purchased (and mortgage) by my late spouse before we were married and I am not on the title to the house or the mortgage.

    What is going to happen now with the mortgage? Will I have to pay it out in full? Could I refinance? Can I simply continue making the mortgage payments that we had been making while my spouse was alive? I understand that the house is now mine without needing to probate the will . . . but will the mortgage change that? Will I need to probate the will?

    Thank you for any information you can provide.

    ReplyDelete
    Replies
    1. Have you had legal advice about the title? Not all provinces have a law in which the matrimonial home goes to a surviving spouse if their name is not on the title.

      Assuming that you are correct that the title is going to you, make sure you go to the local land registry with a death certificate and change the title. You will not need probate for that, or to deal with the mortgage. Change the title first and then go to the bank.

      While you are there, check to see whether the mortgage was life insured, in which case the bank will pay it out.

      As for the rest of your questions, I'm afraid I can't really answer them because mortgages can have different terms. I expect that the bank will allow you to continue making the same payments, if you are able to afford to do that.

      Lynne

      Delete
  27. i found what iwas looking for .to transfer my dads. house but still had a mortage.and if i needed to sell it .how does that work if the titlle is not in my name or deed.

    ReplyDelete
  28. My husband passed away recently,and I am the executrix of his estate. The will was very simple - all of his assets become mine. My question is this: several years ago, my mother in law removed her name from the title of her home and placed my husband and his 2 siblings on the title. This was done to hopefully ease the legalities if his mother should die. His brother is pressuring me to provide the death certificate so that he can remove my husbands name from the title. He says he is also taking himself and sister off and putting his mother back on as sole owner. I don't want to cause problems with the family, but is it wise or even legal to take my husbands name off or does his portion go to his estate?

    ReplyDelete
  29. Hi Lynne,

    My father passed away in Ontario and left my sister and I his house. My father was living with a common law partner at the time of his passing and in his will/cohabitation agreement he stated that his partner would have a year to live in his house to give time to find other accomodations. A year has almost passed and after speaking with his common law partner she does not plan on leaving the house. I am wondering if I have the legal right to evict my father's common law partner? Is she my sister and my tenant now?

    ReplyDelete
    Replies
    1. Yes, you do have the right to evict her. From what you've said, the will and the cohab agreement support that, but the law would support that in any event. In Ontario, common law spouses do not have the right to inherit unless something is specificallly left to them in a will. Nor do they have any automatic right to occupy the home. So if she refuses to go, yes you can evict her.

      Yes, she is your tenant in the sense that if she stays longer than the allowed time, she should be paying rent.

      If you decide that you are ok with keeping the house and renting it to her, I would strongly suggest that you have her sign a lease that sets out the term and the rent.

      Keep tax and legal issues in mind as you decide how to move forward. Has the title to the house been changed into your name yet? Has the estate been wound up? If you keep the house in the name of the estate while renting it, you will have to do tax returns for the estate. There would have been no capital gains tax when your father died, but there may well be gains while the house is in the name of the estate or in your name. Factor that in when deciding on the amount of rent. Make sure the house is fully insured and that the tax bill comes directly to you.

      Best of luck,
      Lynne

      Delete
  30. Dear Lynne,
    A owns 1 percent of a family house (tenent-in-common, I think). Can A sell his 1 percent share to whomever he wants without consent of the 99% B owner? Can creditors of A put lien on his share? Thanks for replying these questions.

    ReplyDelete
  31. Hi Lynne,

    My grandparents indicated to my parents that they were going to leave my dad a piece of farmland and my parents subsequently have put a mobile home on it and used it and maintained it as a weekend cottage type place. My grandparents are thankfully still around but it has been discovered that their will splits everything between my dad and his 2 sisters equally including the land. My dad has offered to purchase the land from my grandparents or to relinquish a claim to some of the estate (of equal value) in order to ensure he can have the land. My grandparents want to believe their kids can just work it out and are reluctant to do anything... you can see where the problem starts.

    The sisters are dead set that they will force the land to be sold and hence why my dad is trying to fix the issue before it becomes one. The land is a quarter section with most of it being farm land and the small home piece is a part of that. If no change is made to what exists could they force my dad to sell the land? From my understanding of the TIC he is entitled to his 1/3 portion of the land and cant be forced to sell. Being that he has no need for the farm land and is really just concerned with the home piece I question the possibility of subdividing the land to name the home parcel separately and then selling the farmland.

    ReplyDelete
    Replies
    1. My late sister and I owned a building lot as Tenants in Common. She passed away six months ago. I have recently discovered that my name is no longer on the title of this property at the Ontario (Canada) Land Registry Office. I did not sell or give away my property to my sister. I have no idea what has happened. The estate's lawyer has, as yet, not explained to me what has happened. Her beneficiary (her husband, I think), has no idea what is going on. There is a Hanson Trust involved for her adult, disabled daughter. If the property was left to this daughter, would this have affected my title in any way. I have not signed any legal documents that would affect my property rights, as far as I know. I may have been a witness to her and her husband's wills. Could there have been anything in those wills that could have taken away my property rights?

      Delete
  32. I own a 10 acre lot in Ontario with my sister. We are listed as tenants in common on the Land Transfer/Deed we received from our parents many years ago. My sister passed away six months ago. When I tried to access my property information file with MPAC (in Ontario), I was told I was no longer the owner. The ownership had been changed in January. I am at a loss as to what has happened. I never sold or signed away my 50% stake in the property. If there was a Hanson Trust involved and the beneficiary of my sister's 50% stake is the person that the Trust was set up for, would this affect my ownership in any way?

    ReplyDelete
  33. Dear Lynne,
    Thank you so much for this very helpful blog. My father inherited half of my grandfather's vacation cabin as tenants-in-common with his stepbrother. The stepbrother has now died, but the land title still lists his name. My dad is 89, and I am tasked with transferring his half of the property to our two sons (I know, notwithstanding your advice above, but so far that's the plan). My sister (Dad's executrix) is (rightly, I believe) anxious to complete this before he dies. The stepbrother's wife (still living) intends to transfer her half to her son, but wants him to just deal with it after she dies. Does the fact that the title still presently lists a dead person as (the other) half-owner inhibit our ability to complete our transfer of my dad's half?

    ReplyDelete
  34. Lynne
    My Mother was in a Hospice for 50 days.
    Dying of bone cancer brain and Liver.
    I have joint Tenancy with my Mom on her property.
    My with is full POA and Executrix.
    My sister changed all of the above.
    The bills except property tax are on her name.
    What am I responsible for?

    ReplyDelete
  35. This happening right now my Mom is still alive living with my Sister.

    ReplyDelete
  36. Hi Lynne,
    My parents were tenants in common. She passed with a Will leaving her half to her three daughters. There are three conditions under which my father must sell the house according to her Will which has been probated, otherwise he is entitled to live there so long as he pays all the bills. Either he 1) remarries, 2) enters into a conjugal cohabitation arrangement or 3) he elects to sell. All of the above options requiring his written direction as an executor. The other executor is one of the daughters. He has since remarried culturally but not legally as in he did not obtain a marriage certificate. He sleeps over at his new wife's house more than he is at home but has yet to move in with her or vice versa. Can he be compelled to sell the house by the other executor and the beneficiaries (the two other daughters)? It has not yet even been a year yet since my mother passed. Further, the new wife and him share a daughter from an affair almost 30 years ago. The three daughters would rather not have to deal with his estate upon his death with a new "wife" and another daughter in the picture. Are petition sales costly and are they more successful than not in this case? Many thanks,
    Sally

    ReplyDelete
    Replies
    1. I don't really understand the bit about marrying "culturally". Was he hitched by anyone with authority in Canada to perform a wedding, either in a church or by a JP? If so, he is legally married whether or not he obtained a certificate. The marriage would have been entered into official records which can produce a certificate.

      If he has met one of the three conditions, then yes he can be compelled to sell either by the other executor or by the beneficiaries, or by them together. In my opinion, the executors have a legal obligation to make him sell if he is legally married because it's their job to carry out the instructions in the will.

      You are looking at a hearing in court, though likely not a full trial. If he fights it all the way, then yes it will cost a few thousand dollars. This might actually be a good case for mediation, which is much, much cheaper and faster.

      You might consider that even if he is not legally married, he is arguably in a conjugal cohabitation arrangement.

      Lynne

      Delete
    2. Thanks for your speedy reply, Lynne. In our culture anyone elderly has "authority", but she would not be someone recognized with authority in Canada.

      Many thanks for your insight, your blog is very, very helpful!

      S

      Delete
  37. My Husband been the Executor and Beneficiary of a TIC estate,and finding
    Out after my Father in Laws death there's a lean on the property.
    Who's responsible for the debt, his
    Second Wife or his Estate, or both?
    Also his Wife wants to continue living
    There,it's only beneficial to us if it's
    Sold.Please comment on that.

    ReplyDelete
  38. Is there a disconnect between the rules of tenants in common and the tax treatment on the capital gain of a share of property? Consider 5 owners (as tenants in common) of a cottage valued at $1,000,000. One owner decides to sell his share to another person (not the other owners). He is only able to get $115K for his share (that is worth $200K, if the entire property was sold). CRA does not use the $115K to determine capital gains; they use the $200K. How can this be fair? Will they accept a minority discount for the value of the share?

    ReplyDelete
  39. Hi Mike. I'm having trouble visualizing the set of facts that would have led to your question. If the property is held as tenants in common, and one of the tenants in common died, then the executor could pass the deceased person's share of the property on to beneficiaries of the estate. Perhaps that's what you mean.

    If what you want is to find out who those beneficiaries are, you probably don't need to sue the executor. Before taking that step, do a search at the probate court for the name of the deceased. If the will went through probate (which it would if property was transferred) then the will is now publicly available.

    If that doesn't help, try searching the title of the property at the land titles office to see whether a new name has been added to the title.

    I assume that what you are trying to do is find out who has been added to a title so that the other people on title can make an offer to buy that person out. Your note is yet another example of how putting multiple names on one title doesn't work. Hope you can resolve it.

    Lynne

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  40. Hi Lynne!

    I currently own my home that is held in tenants-in-common with my mother. I own 99% and she owns 1%.

    She does not live in the home nor does she pay for the mortgage. We did this agreement only because my lender required a co-signer at the time, and they needed for the person to be on title as well.

    I need help understanding:
    1) If we were to change nothing and she passes, and leaves her 1% share to me, what (if any) tax implications would this bring?

    2) What is the best way for her to simply drop off the title or give me the 1% share while she is still living, and do you know what costs are involved?


    Thanks!!

    ReplyDelete
  41. Hi Lynne!
    My husban passes away and in the title of home is tengan common and is out matrimonial home ,se hace tos little kids,and he pay morgatga sirve 2002 that wapa pay her sister va le home for matrimonial home ,then ayer morgatga for the dame sister in 2008 and more morgatga in 2015 and 2017 am life insure that was for the kids and me pay mostly everithing and the bank acaunt for the mom inlaw. And nos they finish with everithing and now mom inlaw is doing a probe or the trusteeship to the court without to así me or tell me;and i legal married please what i need to do?

    ReplyDelete
    Replies
    1. If his mother is probating the will, I assume she must be the one who was appointed as the executor and trustee. If that is the case, she doesn't need to ask you. In some provinces, there is a legal requirement for her to give you notice of her application but in other provinces there is not.

      The fact that she is applying for probate does NOT take your home away. It just puts her in charge of taking care of his affairs.

      I strongly suggest that you take a copy of your husband's will to a lawyer near you. I would like for you to understand what he left to you in the will, and what he left to you outside the will, such as your jointly owned home. You need to know where you stand. If you have not been taken care of properly, you can ask the court to give you more from the estate.

      I can't tell from your question whether the two little kids are yours, or his from a previous relationship. Assuming they are yours, that is all the more reason you need to make sure you are taken care of under the will, since you will have to look after the kids.

      Don't wait too long to see a lawyer because you don't want to wait until things have vanished.

      Lynne

      Delete
  42. Hi Lynne,
    My partner is joint tenant on a house he shared with his mother. She recently passed away and left a will in which she has split the house between the two children. He is confused. Any advice?

    ReplyDelete
    Replies
    1. The only way this could be confusing is if he and his mother bought the house together and he contributed at least as much as she did to the purchase of it. If that's the case, he would have at a good argument that the house should be his. Otherwise, there is nothing surprising or confusing about the situation.

      When an asset is held jointly by a parent and his/her child, the law says that the asset belongs in the parent's estate until it can be shown what the parent's intention was when putting the child's name on the asset. There is no automatic right of survival by the joint owner. In fact, he should assume the opposite.

      In this case, it would appear that his mother made her intentions pretty clear when she said in her will that she intended for the house to be in her estate and not to go to her son.

      Lynne

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  43. Hi Lynne, thank you for this great blog.We share a parcel of land at our cottage with 3 other cottages,that we call the back 40.The 4 of us are tenants in common,and a new owner convinced the others to build a new road through this parcel.We have no problem with that,but the plan they came up with is too close to our garage.My question is,do they need us to sign off on this as tenants in common ? Thank you.

    ReplyDelete
  44. Hi Lynne,

    My common-law spouse and I are tennants in common in the home we own. We have two children together.
    Is it beneficial for us to switch to a joint tenancy? We already have it listed in our wills that we leave our share of the home to eachother.

    If we leave it as tenants in common will we have to probate and pay any capital gains tax?

    What happens if we split up and change our wills?

    ReplyDelete

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