Legal Questions

2016-10-10

1. Should we own our home as Joint Tenants or tenants in common?

Most married couples chose Joint Tenancy so that when the first of them passes away, the property reverts to the survivor and this takes place outside the Will and avoids the costs of Probate. However, if couples hold their home in an undivided half interest, upon the passing of one of them, the property must be distributed in accordance with that person’s Will. Joint ownership is encouraged for married couples for all manner of assets, be it real estate, cars, bank accounts, investments etc. This avoids the need to Probate the Will of the first deceased.

There are exceptions to this practice. Tenants in Common or undivided one half interests is used for business partners, so that one partner’s interest can go to his Estate under his direction, and not go automatically to the surviving partner.

More common are second marriages, where the parties wish to leave the share of their home to their children of a first marriage, for an example. If you have a home in Joint Tenancy, then one set of children might get full ownership from their parent and the children of the first deceased could end up left out of any share. A possible solution is to give the spouse surviving, rights to remain in the home for a set period of time or until ready to relocate, before the property is sold and the proceeds paid to the beneficiaries of the Estate.

2. Leaving money to a child who has a marriage failure?

Most parents wish to leave their Estate to their children. The fear becomes "What happens to the inheritance if your child’s marriage breaks up?" In B.C. the Family Law Act specifies that property brought into a relationship as well as an inheritance after marriage is excluded from a division of assets on a divorce and usually does not have to be shared.

However it is important that the gift remains somewhat in tact and can be traced back to the gift provided. Often it may be a cash gift to a child to help perhaps while the parent is still alive or an inheritance on death. Cash could then be used for different purposes. What if it is spent on a trip to Disneyland? It would disappear as an inheritance and the benefit to the child lost. Similarly when it is used to pay family debts.

What about when it is invested in a home in the child’s name. Should it be later sold or transferred into a home in both parties names there is a presumption that a transfer to a spouse during marriage can be considered a gift to the spouse and not later taken back or excluded from being considered a family asset.

There are ways to avoid unwanted outcomes for gifts to children. Lawyers should be consulted as to how this can be obtained.

<< Back to list page