I鈥檝e presented several scenarios about how your children might end up with nothing of your estate unless proactive steps are taken to prevent that result.
I鈥檝e encouraged families to discuss the uncomfortable topic of our inevitable death and proactively sort things out to remove uncertainty.
I am now going to share a positive story told to me by a reader (I鈥檒l call her Beth) whose mother and stepfather did just that and arranged their affairs to achieve a successful outcome.
They still died. No getting out of that one!
The successful outcome was a fair division of the couple鈥檚 primary asset 鈥� their home - between the two sets of adult children after each of mom and stepfather had the full benefit of the home until they died.
Our home is often the most significant of a couple鈥檚 wealth.
Joint tenancy is the default way that spouses own their home. It makes things really easy and inexpensive when one spouse dies. The surviving spouse immediately becomes the sole owner on sending a death certificate to Land Titles. No probate fees or expenses are paid related to that significant asset, and no delay.
But that leaves everything in the sole ownership of the one spouse and can leave their stepchildren out in the cold.
While both spouses are alive, they intend to maintain wills that provide for a fair division of that asset between the two sets of children. But those intentions can change after one spouse dies and the other enters new relationships. Or existing relationships with stepchildren become strained.
I鈥檝e introduced a couple of solutions. One is a 鈥渕utual will鈥� where there鈥檚 an enforceable agreement that neither spouse will change their will after one of them dies. Another is a legal trust.
Beth鈥檚 mother and stepfather successfully used another solution.
The lawyer handling the purchase of their home was presumptively going to place them on title as joint tenants. They said no 鈥� an estate planning lawyer suggested the other form of ownership: 鈥渢enancy in common鈥�.
With tenancy in common, your share of the property passes to the beneficiaries in your will when you die, not to the surviving spouse.
Each of Beth鈥檚 mother and stepfather made wills that left their respective estates to their own children.
How did they ensure that each of them would be able to stay living in the home until the last of them died?
They used something we refer to as a 鈥渓ife estate鈥�.
Each had a clause in their will giving the other of them a life estate in their 50% ownership of the home.
The clause allowed the surviving spouse to remain living in the home, provided that they pay the taxes, insurance, repairs and other expenses related to the property.
It also allowed for the entire property to be sold for the purpose of purchasing a different property for the surviving spouse鈥檚 use if they wanted to move or downsize.
Beth鈥檚 mother died first, leaving her stepfather with the ongoing sole use of their home. Beth鈥檚 mother (her estate after probate) remained 50% owner of that property.
Her mother鈥檚 other assets passed to Beth and her siblings.
Beth鈥檚 stepfather lived another number of years, all the while paying the expenses related to the home.
After her stepfather passed away, Beth was finally able to wrap up her mother鈥檚 estate. She and her stepsiblings cooperated in the sale of the home and her mother鈥檚 50% of the proceeds went to Beth and her siblings.
The estate did face a hefty capital gains tax because the value of mom鈥檚 50% interest had increased significantly over the years between the time of her death and the time the property sold.
The capital gain expense would have been avoided had a joint tenancy arrangement left the property solely in stepfather鈥檚 name until his death, but that was a small price to pay for the peace of mind certainty that mom鈥檚 share of the home would end up going to her children.
Tenancy in common ownership of property offers an additional level of flexibility. Ownership can be divided into different shares than 50/50. Spouses can choose an unequal ownership of, for example, 75/25 in favour of a spouse who contributes significantly more to acquiring the home.
Tenancy in common ownership, combined with a life estate, was an excellent solution for Beth鈥檚 mother and stepfather.
Life estates can be tricky, though. I could write at some length about how life estates can go wrong, turning out different from how they were intended or leading to litigation.
Life is unpredictable. Putting legal constructs in place to achieve a desired outcome that might be decades in the future is bound to be difficult because of that unpredictability. No solution is a perfect one.
But you are assured a much higher likelihood of success if you proactively discuss and sort out your affairs with the help of a lawyer who can help you navigate between the various options available.
Paul Hergott
Lawyer Paul Hergott began writing as a columnist in January 2007. Achieving Justice, based on Paul鈥檚 personal injury practice at the time, focused on injury claims and road safety. It was published weekly for 13 陆 years until July 2020, when his busy legal practice no longer left time for writing.
Paul was able to pick up writing again in January 2024, After transitioning his practice to estate administration and management.
Paul鈥檚 intention is to write primarily about end of life and estate related matters, but he is very easily distracted by other topics.
You are encouraged to contact Paul directly at paul@hlaw.ca with legal questions and issues you would like him to write about.
