Question:
Husband and wife live in home. Wife is the only one on title. Wife passes away. Does home automatically transfer ownership or does it have to be willed?
Answer:
The answer could be “yes” or could be “no” depending upon a number of facts not mentioned in this hypothetical question. There are a variety of steps to go through in order to come up with the answer.
Step One: Title Registration: The first of a number of steps would be to determine the registration of the title to the property. Was it initially registered in joint tenancy? If so, has that joint tenancy agreement been severed or terminated by reason of the occurrence of any one of the 8 factors giving rise to termination?
Step Two: Agreements Affecting Ownership: Once we know, for sure, that the property is registered in the name of the wife alone, we then have to look at the following:
1) is there an escrow joint tenancy registration agreement?,
2) is there a domestic agreement under the Family Law Act, that is co-habitation agreement, marriage contract, separation agreement or family arbitration agreement?,
3) is there any other agreement affecting the title to the property, or unregistered Transfer, or Charge?
4) is there an outstanding Court Order dealing with the property?
Step Three: Claims Arising by Implication: Assuming that we have cleared the way, in terms of other parties who may have some written and documented interest in the property, we can move to the next step. Are there any verbal claims, or claims that may have arisen out the conduct of the parties? These are claims that are “implied”. Has any person made financial contribution to the ongoing expenses of the premises? Has anyone paid the taxes, the mortgage, the utility bills etc? Has anyone made other collateral payments on account of other daily living expenses, so that the wife will have the funds necessary to continue to make the direct house payments? It is possible that the husband might have a potential claim here. Are there any quantum meruit claims? Are there any possible implied joint venture claims?
Step Four: Estate Solvency: Assuming that we now have the estate of the deceased wife, without any prior commitments, we can take that next step to determine what is going to happen to this property. Is the estate solvent? Are there any outstanding taxes? Are there any outstanding executions or Judgments which might give rise to an execution?
Step Five: Claims of Dependents: Are there any dependents’ relief claims arising under the Succession Law Reform Act, in favour of any person? That could possibly include children and/or the surviving husband.
Step Six: Testate or Intestate Distribution: So far, so good. We have reached the stage where we have a solvent Estate. Do we have testate or intestate succession? Was there a Will? And, if so, did the Will deal with this particular piece of real property? Who gets it? Are the beneficiaries clearly named or are they specified as a class? If they are part of a class, is it clear who falls within the class? Even with a Will, is the real property covered or does its devolution fall under the laws of intestate succession in the Succession Law Reform Act?
Step Seven: Intestacy: Assuming either an inadequate Will, or no Will at all, the property will fall under the rules of intestacy. Now, we apply the spouses’ preferential share. At the present time, under the regulations, that is the first $200,000.00 of assets being distributed by intestacy. If that amount is sufficient, then we are done. If that’s not sufficient then we have to look to the balance, which is divided one half to the spouse, if there is one child and one third to the spouse should there be two or more children.
Step Eight: Authority to Sign for Estate: Assuming that we have now figured all this out, who signs documents for the estate? If there is a Will which would cover this, it would be the Estate Trustee who would have this power from the date of death. If this was an intestacy, we have to wait for the Court Ordered Appointment of the Estate Trustee who will have power from the time of execution of the Court Order.
Note: a separate and distinct issue is the matter of the husband’s rights with respect to the matrimonial home under the Family Law Act. That is a “possessory right” not a right to ownership. A surviving spouse has the right to live in the property for 60 days after the date of death of the deceased.
Brian Madigan LL.B., Broker