By Joanna J. Ringrose
In planning for the eventual disposition of their estate, it is common for people in Ontario to employ various means to try to avoid the payment of Ontario Estate Administration (probate) Taxes. One particular method frequently suggested by well-intentioned advisors is for individuals to put assets into joint names with one or more of their adult children.
Lawyers have long struggled with this issue and have often warned clients about the potential risks of holding assets in joint ownership with adult children. One writer has identified some of these risks for his clients by referring to them as the “Five Ds” or the “Five Dangers” of transferring property into joint ownership (without first seeking legal advice)*:
Joint owners can refuse to cooperate when one needs to deal with the property (i.e. one must have the consent of the joint owner to sell or otherwise deal with the jointly owned asset).
The adult child may die before the parent, or the transferror and transferee may die in a common accident.
An estranged spouse of the adult child could make a claim against the jointly held property.
Creditors of a bankrupt joint owner could make claims against the jointly held property.
Tax problems can arise as a result of a “disposition” occurring for income tax purposes and capital gains taxes becoming payable. Principal residence exemptions can be lost or reduced when real estate is registered in joint names with an individual who already owns a principal residence or subsequently acquires one.
While this list is not exhaustive, it highlights some of the important risks. . .
[Excerpt only; for more information, contact Joanna at (905) 844-5021]
This paper was originally presented by Joanna J. Ringrose on February 16, 2010, at the Ontario Bar Association’s Annual Institute: “Grave Consequences: Traps and Pitfalls in Contemporary Estates Law”. (The Ontario Bar Association is a Branch of the Canadian Bar Association)
*Adapted from Edward Olkovich, Estate to the Heart, (Toronto: EstateTherapy Inc., 2007), p. 26. In his latest book "Breakthrough Estate Planning", the author refers to a 6th “D” and states that it’s plain “dumb” to do this type of planning without advice from an estates lawyer (see www.mrwills.com or www.estatetherapy.com).