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Two or more people may own assets jointly. This most often means that on the death of one of the joint owners, full title to the asset(s) will immediately transfer to the surviving joint owner(s), known as a right of survivorship. The result is that probate fees, some solicitors’ fees, some creditors, and publicity are avoided. Furthermore, assets held jointly are not generally part of the estate of the deceased joint owner, with some exceptions.

It is often assumed that if all of one’s assets are held jointly, one does not need a will. However, there are many reasons for needing a will including:

  1. Not all assets will be held jointly. Your lawyer can help you to assess how you hold title to all of your assets.
  2. You may die at the same time as your joint owner, or you may be the survivor who then dies without a will.
  3. There are planning strategies that are only available if you include them in your will.
  4. Even if you are a joint owner, you will still need an executor to settle your financial affairs, including income tax filings and debts.
  5. Recent case law indicates that not all jointly held assets have an automatic right of survivorship, for example bank accounts and investments.

If you wish to transfer your property to joint ownership, you should consider that the new joint owner comes with their own set of legal rights and obligations. For example:

  1. The new joint owner’s financial difficulties may expose the asset to creditors and a bankruptcy situation.
  2. You will no longer have complete control regarding the sale or mortgaging of the property. Future events, such as the joint owner’s illness or marriage to a scoundrel may forever change your relationship.
  3. Under the Ontario Family Law Act, the joint owner’s spouse may acquire rights in the jointly held assets on marriage breakdown.
  4. Part of your home may no longer be a principal residence for tax purposes if the new joint owner already has a principal residence.

Download the PDF: Concepts Newsletter – Fall 2009

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