In this, the fourth instalment of our series with Dan Hawkwood — an Associate Lawyer at Beaumont Church LLP in Calgary — Dan explains the options you may consider for holding the title to a property and their various impacts on estate planning. Dan comes from a long line of farmers and ranchers in the Calgary area and brings the experience of his rural upbringing to his practice. Dan is customer service driven and client focused adding to a great real estate experience.
When purchasing a new real estate property, one of the many decisions a buyer must make is how they will hold the title to that property. There are a number of choices available, including holding title in your name alone, or holding it jointly with a spouse. From an estate planning perspective, the selection of ownership on title can have a significant impact on future expenses to the estate of the buyer, and affects the transmission of the property to the buyer’s heirs and beneficiaries.
Upon the death of a real estate property owner, the executor of the Estate of the deceased must determine how to transfer that property to the beneficiaries of the Estate. In accordance with the Alberta Wills and Succession Act, any real estate property held in the name of the deceased alone cannot be transferred to the beneficiaries of the Estate until the executor receives a Probate Order from the Court of Queen’s Bench. The Court application to acquire the Probate Order is relatively extensive and is usually completed with the assistance of a lawyer. The Court reviews the application and, if they are satisfied, gives the executor permission to transfer the property. Depending on the size of the Estate and value of the property involved, this application may take a significant amount of time to prepare, and cost thousands of dollars in legal and filing fees. The Court can also take weeks, or even months, to review the application and grant the Order. During this time the Estate of the deceased must bear the carrying costs of the property. If the property is to be sold and the cash proceeds distributed among the beneficiaries, any such sale must also be delayed until the Court formally grants the Order. This can add to stress for beneficiaries, particularly if they relied upon the deceased financially and must wait for the Court before they can access the assets of the deceased.
One way to avoid these delays and costs would be to hold title to your property as “joint tenants” with another individual. This is usually a spouse, but also could be a child or other close relative. Joint tenants enjoy what is known as a “right of survivorship”. This means that, upon the death of one joint tenant, the title to the property automatically reverts to the other joint tenant, without the need of a Probate Order. Rather, a short affidavit is signed and submitted to the Land Titles Office, which will then proceed to issue a new title certificate in the name of the surviving individual. Often, when the property is the primary residence of the deceased, it is also the main asset of their Estate. In such circumstances it may be possible for the executors to avoid having to acquire a Probate Order in order to deal with the Estate of the deceased altogether. This can save the executors and the beneficiaries of the Estate a lot of time, effort and legal fees.
If you are currently the owner of one or multiple real estate properties, it is a good idea to review your title ownership to those properties, and ensure such ownership aligns with your estate plan. You may wish to adjust your ownership depending on who you wish to receive your property upon your passing. If you have any questions, please consult with your legal counsel.
Dan Hawkwood is an Associate Lawyer at Beaumont Church LLP in Calgary.