Some Estate Planning Techniques for Preserving the Interest in the Matrimonial Home

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Question:

Here are some additional facts following legal consultation. Jim’s parents will own 1%. Jim will own 99%. Susan will get 50% of matrimonial home should marriage dissolve. 

Susan needs to ensure that Jim gets a Will done saying that upon his death, his 99% is transferred to Susan.  Are there any other considerations?

Answer:

The 99/1 division can be as tenants –in- common and the 99 can be Joint Tenancy with Susan.

The Will is fine to some extent, but it can be changed unilaterally without Susan’s knowledge. She can have an unregistered Transfer/Deed in Joint Tenancy subject to escrow which would permit her to register after Jim’s death. That saves probate fees on the property. It also provides eventually for income splitting later. Also, it would be effective if suddenly Jim were to become bankrupt. That plan needs to be set in place now. Twenty years down the road is too late.

First step would be the domestic agreement, Second step, the Will, Third step the Transfer in escrow.

There is a slight caution in terms of using this approach. The current Land Registrar doesn’t like it. That means t=you might have to go to Court in order to obtain a Court Order requiring registration. So, this causes delay and it’s expensive. So, be sure to seek legal advice about this before proceeding.

Brian Madigan LL.B., Broker

www.OntarioRealEstateSource.com

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