What happens to my property if my spouse dies? Unfortunately, this is a common question property lawyers in Scarborough receive. The answer depends largely on whether a legal Will exists.
It’s one of the most avoided topics couples discuss. Having a Will. No one likes to think of dying or what will happen to their loved ones once they pass; however, it is an important discussion to have. Death leads to many uncertainties for the people left behind. Being concerned over the property shouldn’t be one of them.
A title transfer lawyer in Scarborough can help sort through the legalities of property ownership. With a Will, most cases are straight forward (unless someone contests the Will) as the document specifies the distribution of all assets to the beneficiaries.
Without a Will, the death is known as “intestate” under Canadian law. The rules of property inheritance vary from province to province and are based on several factors.
For Married Spouses
The surviving spouse has a few options under Ontario law regarding their rights to the inheritance.
Frequently, the surviving spouse claims the entitlement as set forth in the Will or will choose (under the Family Law Act) to receive equalization payment of one half of the net family property difference. If there is no Will, the surviving spouse can claim an entitlement with the Succession Law Reform Act.
For Common-Law Spouses
A Will protects the surviving common-law spouse. Without it, the person could receive nothing.
While provincial law in Ontario recognizes common-law spouses for income tax purpose, when it comes to inheritance, they do not. Whether the couple has been living together for three years or for 50 years, upon the death of one partner, the other does not automatically inherit property or other assets. The surviving partner would need to make a lawsuit claim in court to receive any portion of the estate.
If the Spouse Was the Sole Owner
Sole ownership is a common issue as many couples only place one name on the Title Ownership document. This is done for a variety of financial and personal reasons. With an existing legal Will, the property must be bequeathed to the surviving spouse. If it is not, the house will be sold, and any monies will be distributed as part of the estate.
In the case of no Will, the house falls under the estate and can be sold with legal benefits receiving the value under the Succession Law Reform Act.
If the Spouse Had Joint Tenancy
Joint Tenancy is a legally binding agreement wherein two or more people hold Title Ownership to a property. In the case of a death, the joint owner automatically inherits the asset, regardless of whether there is a Will or not. In Ontario, this applies to both married and common-law couples.
If the Spouse Had Tenants-In-Common
A Tenant-in-Common venture is similar to a joint tenancy with the exception that the value of each person’s share may vary. One spouse may hold 60% of ownership while the other holds 40%. Upon the death of one spouse, their share is automatically transferred to their estate and dealt with by the provincial laws with a Will or as intestacy.
Who’s Responsible for the Mortgage After a Spouse Dies?
The responsibility of paying the mortgage (and other financial matters) depends on the Title Ownership at the time of the spouse’s death. If the deceased spouse was named as sole owner, and there is no Will, the mortgage is assigned to the estate and it is required to be paid in full before being transferred to the beneficiaries.
If the surviving spouse is named in the Will as the beneficiary, they will be responsible for any remaining portion of the mortgage that is not paid for by the estate.
A joint Title Ownership sees the surviving spouse effectively become financially responsible for the continuing payments. This is why most couples choose mortgage life insurance from their financial lender as the remaining mortgage amount is covered upon the death of one of the spouses if directed within the documents.
Contact Zinati Kay for the Best Property Lawyers in Scarborough
Whether you have a Will or not, talk to the leading real estate lawyers in Scarborough at Zinati Kay – Real Estate Lawyers. We can help ensure your loved ones are protected upon your death. With more than 25 years in assisting GTA homeowners to buy, sell, refinance, or transfer Title Ownership, we can design the best financial and legal plan for you and your estate. Call us today at (416) 321-8766 and see how we can help you.