When somebody die, they are deemed to have sold all of their assets just before death. Of course, in reality, nothing has been sold yet, and it will be up to the executor to sell or bequeath the assets of the estate, following the terms of the will. However, in many estates there are assets which are not owned by the estate. But how can that be? How can the assets be owned by the deceased while he was alive, but not owned by his estate after death? If the estate doesn’t own those assets, who does?
Some assets are owned jointly, with each owner having the right of survivorship. For example, a joint bank account. Each of the two owners owns the entire bank account, and when one of them passes away, the name of the deceased is removed from the account, leaving the survivor as the only owner. The estate is not the owner of that bank account, but rather the survivor is the owner. Another common example is the family home, which is often times owned by a couple in joint tenancy. When one of the two owners dies, the name of the deceased is removed from title, leaving the survivor’s name on title. Once again, the house does not form part of the estate.
There are other common examples, too, such as insurance policies and retirement savings. Most insurance policies and retirement savings accounts have one or more named beneficiaries, so the proceeds of the policy will go directly to the named beneficiaries, meaning the policy and RRSP/RRIF do not form part of the estate.
If you need to file for probate, only those assets owned by the estate will get included, meaning you will not have to pay probate fees for those other assets. So why then are insurance policies sometimes included in the probate application? If the policy owner never named a beneficiary, or if the beneficiary died, then the estate becomes the beneficiary, meaning the value of the policy needs to be included in the list of assets, on which probate fees are calculated.
By now some of you might be thinking you could save a lot of time and money if you became a joint owner on your parents’ house. You’d save on probate fees, and you might even eliminate the need for probate altogether. Well, you’d be correct on those two points, but there’s more to consider, especially for your parent(s), so you’d be well-advised to speak with an accountant before going on title.
Sometimes real estate is owned by two or more people as Tenants in Common, rather than Joint Tenancy. If one of the owners dies, that person’s share of the property forms part of the estate, can be sold or bequeathed, and does not automatically transfer to the surviving owner(s). You’d rarely see this type of ownership for the family home, but you would frequently see it for investment properties.
Gregg Medwid is the owner and president of Executor Support, a firm based in Coquitlam, British Columbia, with expertise assisting executors and administrators in settling estates. The project management expertise and customer service focus Medwid brings to Executor Support ensures questions are answered and help is given when it is most needed.
This article is in no way intended to substitute for competent legal advice.
Gregg Medwid, Owner