Legal wise with Carolynne

What would really happen to your home when you die?

George and Anita (not their real names) thought they owned their home jointly. After all, they were both listed as borrowers on their mortgage and their property tax statement came addressed to both names.

George and Anita assumed that if one of them died, their home would automatically go to the surviving spouse.

But when George died last year, Anita discovered that it was not that simple because they owned their home as tenants in common.

Unfortunately, to get the house transferred into just her name, Anita had to apply to the B.C. Supreme Court for a grant of probate in George’s estate, pay probate fees on his half of the property and then file the grant of probate in the Land Title Office.

If Anita and George had owned their home as joint tenants, all of that could have been avoided.

There are two ways that two or more people can own property: joint tenancy and tenancy in common. The biggest difference between joint tenancy and tenancy in common is the right of survivorship.

When a joint tenant dies, that person’s interest in the property is automatically transferred to the surviving joint tenant. But when a tenant in common dies, the deceased’s interest in the property goes to their estate and is distributed according to their will or according to British Columbia intestacy law.

When I meet with clients, I describe the difference between these two ways to own property by using the example of spouses who want the surviving spouse to have their family home when one of them dies (joint tenancy) compared to siblings who want their family cabin to be passed down to their respective families when one of them dies (tenancy in common).

A joint tenant’s interest in the property is extinguished when he dies. This means that property does not form part of his estate and you don’t need to pay probate fees on that asset.

If Anita and George had owned the property as joint tenants, all Anita would need to do is file George’s death certificate in the Land Title Office. She would not have needed a grant of probate or been required to pay probate fees. This would have saved her time, money and stress while she was grieving the loss of her husband.

Do you own your home in joint tenancy or tenancy in common? One way to check is by looking at your Land Title Office Form A transfer from when you acquired the property. It should say your name and your spouse’s name and “as joint tenants” below. If it’s missing the words “as joint tenants”, you own as tenants in common.

Your lawyer can help you find your property transfer documents or change your property into joint tenancy.

– Carolynne Burkholder was born and raised in Vanderhoof. She is a full time lawyer at Heather Sadler Jenkins LLP.

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