Real Estate Legally Speaking
Caveat: Adding Children to Title of Property as Joint Tenants
Clients wishing either to avoid probate filing fees or disinherit an errant child will often ask whether or not they can add another adult child to the title of their home as joint tenants. Upon the death of the parent such real estate will by right of survivor ship automatically transfer into the name of the surviving adult child. It was generally accepted that the law of presumption of advancement applied to such a transfer. In other words, the transfer by the parent of a one-half interest in the parent's home to an adult child was deemed to be a gift to the child and accordingly did not form part of the deceased parent's estate. Hence no probate filing fees nor challenges pursuant to the Wills Variation Act. Two recent Supreme Court of Canada decisions have now impacted the foregoing. In May 2007 the SCC released the Pecore and the Madsen Estate decisions. In these decisions, the SCC reviewed the common law concepts of presumption of advancement and resulting trusts. When a parent either places his or her assets in a joint tenancy account with his or her child or add his or her child to the title of the parent's home as a joint tenant, the question is whether the parent intended to make a gift of the beneficial interest in the accounts or the real estate upon the parent's death to the child or whether the child holds the beneficial interest in the accounts or real estate in trust for the parent, either during the parent's lifetime or when the parent dies, for the parent's estate upon a resulting trust.
The space allotted for this article does not permit an exhaustive review of the SCC cases however in my opinion persons advising parents who are considering placing assets in joint tenancy with their children must now ask:
is the intent of the parent to gift the property to the child or does the child take the interest in the property in a resulting trust?;
if a gift, is the intent of the adult child to take the beneficial interest immediately or only at the parent's death?; and
if a resulting trust, what are the terms of the trust, both during the parent's lifetime and upon the death of the parent.
In a nutshell, the simple act of a parent adding their child to the title of their home as joint tenant is no longer so simple. The parent's intention must be determined and it is important that appropriate documentation is prepared in order to reflect the parent's intention. Such documentation would include either a deed of gift or a trust agreement, both acknowledged by the child.
By Frank B. Carson, B. Comm., LL.B Cox Taylor