Answering more questions about joint property

I really do try to answer readers' questions as quickly as possible but I'm the first to admit that sometimes it takes me a while to get to them all.

I continue to get tons of questions about joint tenancy of homes, and about tenancy-in-common. I'll answer a few of them briefly here (let me know if you need more expanded answers):

Q: My spouse, who is also the joint tenant of our home, has died. How do I change the title into my name only?
A: Take an original Death Certificate (not Funeral Director's Statement of Death) to the Land Titles Office. You will fill in a document called a Declaration of Surviving Joint Tenant, or variations on that in other provinces. You then hand in the document to the Land Titles Clerk, who will amend the title for you. You do not need probate for this.

Q: Two people own a house as joint tenants. What happens if one dies and the surviving joint tenant has Alzheimer's disease?
A: The surviving joint tenant still gets to own the house, with or without Alzheimer's disease, as that is the legal right given by joint tenancy. The question may really be about the logistics of the paperwork, since a person with advanced dementia is not able to understand and sign legal documents. Who can act for this person? If the person with Alzheimer's disease has an Enduring (Continuing) Power of Attorney, it may be used to deal with the land. If there is no Power of Attorney, it may be necessary for someone to be appointed as a trustee by the court.

Q: What happens if both joint tenants die at the same time and there is no Will?
A: If it is impossible to tell which of the joint tenants died first, the law says that the one who is younger is deemed to have outlived the older one. This means the joint title first transfers to that joint tenant, leaving the land in his or her name only. If there is no Will, all of the assets of that person, including the land that used to be in joint tenancy, will be distributed according to the provincial intestacy laws. In Alberta, that would mean children of the second joint tenant first. If there are no children, then his or her parents. If there are no surviving parents, then siblings. Nothing will go to the family of the older joint tenant who died first. See my earlier post here about survivorship of the younger person.

Q: Does a joint title change to tenancy-in-common if one of the joint owners remarries?
A: Nothing is going to happen automatically if one remarries. The title will stay the same until the joint owners both sign documents to bring about a change. One can't do it on his or her own. Remarriage on its own won't change anything. If this question refers to a house that was the matrimonial home and now the couple is splitting up, I assume that the house will be dealt with in the subsequent property division. In other words, you'll divide everything up and one of you will get the house. As part of that agreement, you'll both sign a Transfer of Land document that transfers the house to one owner only.

What happens when two people die at the same time?

Husbands and wives often want to know what will happen with their estates if they should both be killed in the same accident. In particular, the questions are about situations in which there is no way of knowing which one of them died before the other.

The law (in Alberta, the Survivorship Act) says that of the two people who died, the one who is younger is deemed to have survived the longest.

This means that the Will of the younger person is the one that will be followed. Most (but not all) husbands and wives have Wills that are "mirrors" of each other, meaning that their Wills make the same provisions. If they have no Wills, their estates will be distributed according to intestacy law based on the younger person. In a future post I'll go into more detail about who is in line under the law, but for now it's enough to say that intestacy laws would operate so that in the absence of children, the entire estate would go to the family (siblings, parents, etc) of the younger person with nothing going to the family of the older person.

Joint property of all kinds will be put into the name of the younger person for his or her executor or administrator to deal with.

Many husbands have life insurance policies that are supposed to pay a sum of money to the wife on the death of the husband, and vice versa. There is actually a law in place to deal with the scenario of the insured person and the beneficiary of a life insurance policy dying at the same time. When a life insured person (say, the husband) and the beneficiary of the policy (say, the wife) are both killed simultaneously, the policy is paid as if the beneficiary had died first.

This means that if the wife is the only beneficiary of the policy, the life insurance money will be paid to the husband's estate. From there it can be paid out according to his Will.