# Lawyer costs to add my name to my mothers house deed?



## bradycat (Mar 5, 2017)

Doing up my mother's will and we are going to add me the deed.

How much does it cost to add my name to my mothers house deed? I live with her and she wants to put me on the deed to avoid probate fees and the hassle. Do I need to be added to the mortgage as well??

I have been living with her for the past 7 years and I own no other home. I have 2 brothers that live out of town and it has already been discussed among all of us I am to get the house and its contents.

So how much or an estimate would I need to pay a lawyer to do this and does the mortgage have to be changed also, which is just under my mother's name?

Also. how does this affect my taxes? 

Thank you,
Joanne


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## Oldroe (Sep 18, 2009)

POA is another important document you should consider.

And bank accounts can have yours and brothers name on them. if trustworthy.


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## OnlyMyOpinion (Sep 1, 2013)

I've never read of this being recommended simply to avoid (1.5% in Ontario) probate fees.
Make sure you and your mother are aware of the implications of doing this. Do some research first. Make sure it is done correctly if you proceed.
- She will lose the ability to sell and 'cash in' the value of her house in the event that she needs the money for additional income or health care.
- She will be deemed to have 'sold' half of her house at the time so she will need to get a fair market value (fmv) and report this on her income taxes. Presumably this is her principal residence so there will be no capital gains tax.
- Are you really sure there will be no inheritance issues. She should amend her will to state her intention to leave you her other half of the house so there is no basis for misunderstanding
- As I understand it, your ownership could be challenged if things got nasty - you could be considered to have been holding in trust for your mother, and the house could become subject to proate still. There is also the question of whether you will be eligible for the principal residence exemption when you eventually sell (you might be subject to capital gains on final sale price minus fmv at time she transferred to you).


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## carverman (Nov 8, 2010)

bradycat said:


> Doing up my mother's will and we are going to add me the deed.
> 
> How much does it cost to add my name to my mothers house deed? I live with her and she wants to put me on the deed to avoid probate fees and the hassle. Do I need to be added to the mortgage as well??


You don't have to have your name addeded to the mortgage, just the deed. However, you have to
arrange for the mortgage payments to come out of YOur account. Once your mother passes,
all of her bank accounts will be frozen pending the Probate court processing, so I don't know if
the banks will allow a mortgage payment, ,maybe they will.
You need to change over all utility bill payments to your acct as soon as you can. 



> I have been living with her for the past 7 years and I own no other home. I have 2 brothers that live out of town and it has already been discussed among all of us I am to get the house and its contents.


If you have lived at her address for 7 years and filed your income taxes using that address as your PRINCIPAL residence,
then it's simply a matter of going to a lawyer and having your mother GIFT her share of the home to you.
I think there is a value of about $1.00 involved. The lawyer will register the new title with the land office and give you
a copy of the new deed showing you being the sole owner of the said property. 

*I had EXACTLY the same thing done for me.*



> So how much or an estimate would I need to pay a lawyer to do this and does the mortgage have to be changed also, which is just under my mother's name?


It depends on the lawyer, but my transfer was done for around $300 + HST.
[/quote]
Also. how does this affect my taxes? [/quote]
It won't affect your personal taxes. If your mother paid the property taxes, there may be a small $50 charge by your muncipality to make sure that you being on their tax record as the sole owner pays the property taxes.

Your mother can continue to pay the mortgage payments for now.
The mortgage company may need to see the transfer of title once that is done. 

In my case, I paid the property taxes all along My mother was just listed co owner of my house
but lived at a separate address in Toronto.


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## carverman (Nov 8, 2010)

carverman said:


> You don't have to have your name addeded to the mortgage, just the deed. However, you have to arrange for the mortgage payments to come out of YOur account or a joint account shared with your mother. Once your mother passes, all of her other bank accounts will be frozen pending the Probate court processing, so I don't know ifthe banks will allow a mortgage payment, ,maybe they will.
> You need to change over all utility bill payments to your acct as soon as you can.
> 
> It would be better to have a *joint account with your mother set up*, that way the banks cannot freeze your mother's acount, since it would still be yours, so mortgage, property taxes and utility bills can come out of the same account without any stoppages.


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## Just a Guy (Mar 27, 2012)

Could just go down to land titles and add yourself. It's not difficult or expensive. It's one form, takes a few seconds to fill out. I think your mother would have to come down with you, since it's her house, but it's a lot cheaper than a lawyer.


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## bradycat (Mar 5, 2017)

Oldroe said:


> POA is another important document you should consider.
> 
> And bank accounts can have yours and brothers name on them. if trustworthy.



I am drawing up the POA and the Personal Care also. I know those are important also. I am on her bank account already. So covered there. Thank you.
Our family, I can say, when the time comes, we will not be fighting over money or the house. We have talked about this when we have been all together, and I would trust my brothers with everything I own, as they are the same with me. WE are a very close family and money doesn't rule our ways, like some do, which is sad.

Thank you for your input.


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## bradycat (Mar 5, 2017)

OnlyMyOpinion said:


> I've never read of this being recommended simply to avoid (1.5% in Ontario) probate fees.
> Make sure you and your mother are aware of the implications of doing this. Do some research first. Make sure it is done correctly if you proceed.
> - She will lose the ability to sell and 'cash in' the value of her house in the event that she needs the money for additional income or health care.
> - She will be deemed to have 'sold' half of her house at the time so she will need to get a fair market value (fmv) and report this on her income taxes. Presumably this is her principal residence so there will be no capital gains tax.
> ...


Well it's less of a hassle of putting myself on the deed. We know friends that this has happened to, and they would have done this, and avoid the hassle.
As I noted in another reply. We are a close family and have talked about this several times in the past 15 years or so and have all agreed, unlike some families we have heard about. I trust both my brothers with everything I have and they are the same with me. So I am NOT worried about anything being challenged.
It is in the will as well, stating it's left to me, as I am working on her will, POA, and her personal care.

Thank you for your input.


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## bradycat (Mar 5, 2017)

carverman said:


> You don't have to have your name addeded to the mortgage, just the deed. However, you have to
> arrange for the mortgage payments to come out of YOur account. Once your mother passes,
> all of her bank accounts will be frozen pending the Probate court processing, so I don't know if
> the banks will allow a mortgage payment, ,maybe they will.
> ...


Also. how does this affect my taxes? [/quote]
It won't affect your personal taxes. If your mother paid the property taxes, there may be a small $50 charge by your muncipality to make sure that you being on their tax record as the sole owner pays the property taxes.

Your mother can continue to pay the mortgage payments for now.
The mortgage company may need to see the transfer of title once that is done. 

In my case, I paid the property taxes all along My mother was just listed co owner of my house
but lived at a separate address in Toronto.[/QUOTE]

Hello, I am on my mother's bank accounts already. I am doing up her will and POA and personal care. Doing a FYI kit, and just filling in what she originally had and changing a few things regarding leaving the house and it's contents to me. I know I will have to change over all the bills and mortgage to my name, but if I don't have to do the mortgage until then, then good.

She is just adding me to the deed, not fulling giving it to me. This way it's a joint tenancy - Right of Survivor ship. As with past friends who have gone thru this, it was a hassle to deal with, and they all recommended to do it this way. and yes my income tax have been filed at the same address as my mother.

So the house is our principle residence.

So are you saying it won't affect my income tax? I guess I need to call CRA to find out, how it gets reported once this happens for next years taxes. I don't know how it will affect both of our taxes.

My mother will keep paying the mortgage and property taxes.....there is no issue there at all.

Thank you for your input.


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## bradycat (Mar 5, 2017)

carverman said:


> carverman said:
> 
> 
> > You don't have to have your name addeded to the mortgage, just the deed. However, you have to arrange for the mortgage payments to come out of YOur account or a joint account shared with your mother. Once your mother passes, all of her other bank accounts will be frozen pending the Probate court processing, so I don't know ifthe banks will allow a mortgage payment, ,maybe they will.
> ...


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## bradycat (Mar 5, 2017)

cc


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## bradycat (Mar 5, 2017)

Just a Guy said:


> Could just go down to land titles and add yourself. It's not difficult or expensive. It's one form, takes a few seconds to fill out. I think your mother would have to come down with you, since it's her house, but it's a lot cheaper than a lawyer.


Hello,
I never heard of this? Have you done this before? If you can do this, then why do people use a lawyer? I understand the use of a lawyer, but since they charge a lot, for anything they do, if this is a way to cut out the middle man, THEN this would be good.

Thank you for your input.


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## Just a Guy (Mar 27, 2012)

I've done it before. Most people hire lawyers because they don't know that they can do it themselves. I've also probated a will several times myself in different provinces. I can't remember how much it costs to change the documents at land titles, it probably also varies depending on the province, but the fees are minimal if not outright free.


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## bradycat (Mar 5, 2017)

Just a Guy said:


> I've done it before. Most people hire lawyers because they don't know that they can do it themselves. I've also probated a will several times myself in different provinces. I can't remember how much it costs to change the documents at land titles, it probably also varies depending on the province, but the fees are minimal if not outright free.


Well I am in Ontario. What that one of the provinces you did that in? That is very informative to say the least. Not like there is a website to help you do this, you know. so of course people go to a lawyer for it.

Thank you for your help again.


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## sags (May 15, 2010)

It doesn't appear to be all that simple and often not advised.

_Canada Revenue Agency may also take the position that jointly held assets have not passed on death to the surviving joint transferee(s) by right of survivorship and therefore remain assets of the estate of the deceased, on which probate fees are payable (estate administration tax), possibly defeating the entire reason for placing the assets in joint ownership in the first place._

http://cohenhighley.com/articles/wi...-avoid-probate-fees-risks-of-joint-ownership/


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## Oldroe (Sep 18, 2009)

In our case my parents will was a waste of money.

Both my parents went to the nursing home, my mom stroke and dad agree it was time. Took a few months to get them in same room. First time in 18 years spouses in same room.

Both checking and tfsa are in 3 sisters and my parents and me. There auction proceeds and the sale of the house will go in account with all 6 names on it. There funerals are planed and paid for.

All that is left are the stuff to decorate there room.


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## carverman (Nov 8, 2010)

Just a Guy said:


> Could just go down to land titles and add yourself. It's not difficult or expensive. It's one form, takes a few seconds to fill out. I think your mother would have to come down with you, since it's her house, but it's a lot cheaper than a lawyer.


What are you saying here JAG. In Ontario at least, that an individual cannot just go down to the land registry office, fill out a form and
be approved to register the deed. That could open up a can of worms for properties if deceit is intended.
You can just go down, pay the fee and then put your name on the title of ANY PROPERTY anywhere?

I don't think so. 



> How it works
> All private property ownership records in Ontario are registered with the government.
> 
> *Anyone can search for land records.
> ...


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## carverman (Nov 8, 2010)

bradycat said:


> Hello,
> I never heard of this? Have you done this before? If you can do this, then why do people use a lawyer? I understand the use of a lawyer, but since they charge a lot, for anything they do, if this is a way to cut out the middle man, THEN this would be good.
> 
> Thank you for your input.


No you can't. 
You have to apply for AUTHORIZATION to the Ont gov't to be able to register land titles. 

As an individual, you can certainly go in to any land titles offiice, pay a small fee and search for any particular land parcel that your interested in

I did this myself to search title on my ex's property to see who's name was on the title.


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## carverman (Nov 8, 2010)

sags said:


> It doesn't appear to be all that simple and often not advised.
> 
> _Canada Revenue Agency may also take the position that jointly held assets have not passed on death to the surviving joint transferee(s) by right of survivorship and therefore remain assets of the estate of the deceased, on which probate fees are payable (estate administration tax), possibly defeating the entire reason for placing the assets in joint ownership in the first place._
> 
> http://cohenhighley.com/articles/wi...-avoid-probate-fees-risks-of-joint-ownership/


It would depend on extenuating circumstances, I suppose but IF BOTH PARTIES are related and living in the same place (address) and file to CRA that that is their principal residence, 
then as long as the lawyer includes "right of survivorship" on the property deed, there should be no problem for the daughter or son to assume full ownership at time of death.

If not done before the parents' death, the parents half interest in the said property would be added to the deceased parents estate and estate taxes payable on it.



> The right of survivorship is an attribute of several types of joint ownership of property, most notably joint tenancy and tenancy in common. When jointly owned property includes a right of survivorship, the surviving owner automatically absorbs a dying owner's share of the property.


This is only applicable to a principal residence. Both parties should be living there, but in my
case, it didn't affect me when my mother's half interest was transferred to me as a gift and
(I think the lawyer also included the sum of one dollar). 

So it is important to have any gifting done by the parent to the child, before the parent becomes deceased, because ONE MINUTEafter death of the parent, the property cannot be transferred and is part of the parent's estate to be taxed at FMV. 

A lawyer has to be involved, as there is some "boiler plate" clauses in the deed transfer document, and declaration by the parent that is gifting part of their estate, and of course a lawyer has to register the new deed. 
The parent can't do this as part of their will either.




> If the asset transferred is an *interest in a principal residence*, there may be a loss in the future of the principal residence capital gains exemption to the extent of the interest transferred from the date of the transfer onward.


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## sags (May 15, 2010)

It should also be noted that taxes changed for 2016 tax year and house ownership must be listed on the tax return.

Principal Residence Exemption (you must fill out the Schedule 3, Capital Gains section of the T1 tax return)

It would be noted by the CRA this house was not jointly owned in 2016.

Garth Turner has a blog on the effect of the change. 

http://www.greaterfool.ca/2017/03/31/gaming-it/


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## Just a Guy (Mar 27, 2012)

carverman said:


> What are you saying here JAG. In Ontario at least, that an individual cannot just go down to the land registry office, fill out a form and
> be approved to register the deed. That could open up a can of worms for properties if deceit is intended.
> You can just go down, pay the fee and then put your name on the title of ANY PROPERTY anywhere?
> 
> I don't think so.


I didn't mean to imply that anyone could just go down to land titles and add themselves to any title. I meant, as a homeowner, you are entititled to go down and make changes to your records.

For example, the last time I moved, I had to go down to the various land title offices and have my mailing address updated on all my rentals. The process is free, but it's a change to the title. I could have paid my lawyer to update them, but it would have cost a small fortune.

When my mother was getting old, I made changes to her title adding on the siblings.

In he early days, I also removed people from my title.

Anything that can be done by a lawyer can be done by an individual. You aren't required to have a lawyer for anything, it's just advisable, especially if you don't know what you are doing.

The people at land titles see this all the time, they helped me fill out the forms properly. 

I've also incorporated companies myself, probated wills, gone to court, and bought properties (where you have to register a transfer of ownership at land titles) all without a lawyer.


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## sags (May 15, 2010)

According to one real estate website, adding a person to the deed would require the following paperwork.

_Completed Title Transfer Intake Form
Ownership document
Property Tax Bill
Confirmation from your bank that they approve such transfer_

https://www.realestatelawyers.ca/Transfer-Of-Ownership

If the home has a mortgage the lender would have a notation on the title they hold the property as security. 

It would be noted as an "interest" and they would be notified of any change to the title.

In Ontario, MPAC also have to be notified of the change by the Land Registry Office.

* We had an "interest" on farmland in Saskatchewan to receive notification of changes to the title by the executor.


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## ian (Jun 18, 2016)

Why not go down to the Land Titles Office in your city and ask them. In BC, we did it ourselves simply by doing this. We did not use a lawyer. We did the same for probate. Not sure if there is a difference between provinces...Quebec may be different because of civil vs common law.


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## bradycat (Mar 5, 2017)

Thank you all for the input.

My families circumstances, are different, somewhat. We are not out to steal from one another, or what ever I have read on not doing this. We are not that kind of family and never were. We are close and nothing will be an issue. People are even surprised of all that we talk about in our family. Nothing is off the table, so to speak.

I know that if my mother needs to be put up somewhere, and I was on the deed, then yes I would sign it off to sell, and get her what ever help she needs. 
In our case I live with my mother, and have been for over 7 years, and I have no other home. This will just elevate the hassle when the times comes. I have put it in the will as well, to cover all bases. This way, nothing gets frozen and we can't access accounts or what ever.

Death is never a time to make rational decisions, and this will make sure it's all taken care of, that we don't have to make those decisions at a time of our loss, you know.

I know one person commented we should get legal advice, or not advised. Well we can read how the adult child should be put on the title, and we get that. WE have discussed it and there is no issue there. 

Also I know I need my mother with me when we add myself to the title, that I can't just do it myself. No issues there either.

It sucks, that there isn't a book on this stuff. There are books on certain topics, but I get that there won't be a book to offer legal advice, and I get that.

I will contact CRA and ask them questions and then go to the Land registry place, and inquire there also, as they will know full well what is needed to be done.

I do appreciate everyone's comments and replies.

I am just trying to gather as much information that I can, before I start making calls. and this is helpful.


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## bradycat (Mar 5, 2017)

hey Just A Guy,

That's great to know. 
sags reply there...According to one real estate website, adding a person to the deed would require the following paperwork.

Completed Title Transfer Intake Form
Ownership document
Property Tax Bill
Confirmation from your bank that they approve such transfer

Is this what you had to supply when you adding a sibling to your mother's deed?

Why would a bank be involved here? for an approval? 

Thanks


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## bradycat (Mar 5, 2017)

sags said:


> According to one real estate website, adding a person to the deed would require the following paperwork.
> 
> _Completed Title Transfer Intake Form
> Ownership document
> ...



sags.........what do you mean approval from the bank? I have searched the internet, and haven't found that type of information. And I haven't found that information either, on those 4 items you listed.
Stupid internet. haha..........where did you find this?

Thank you


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## Just a Guy (Mar 27, 2012)

The reason you need approval from the bank is if there is a mortgage on the property, they'd probably want to add the person to the mortgage as well, which would mean a new application and qualifying for a mortgage all over again.

If there is no mortgage, you don't need bank approval.

Also, in other provinces, you don't even need bank approval. I know a guy who had a co-signer for a mortgage. A few days after getting the mortgage, he went down to land titles with his co-signer and took them off title. The bank, of course, is still registered against the property, and the co-signer is still on the hook should it go into default, but he co-signer no longer had claim to the property. In this case, nothing happened, but the risk isn't with the bank, its with the person who was removed from title. Probably why it's not required in all provinces.


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## bradycat (Mar 5, 2017)

Just a Guy said:


> The reason you need approval from the bank is if there is a mortgage on the property, they'd probably want to add the person to the mortgage as well, which would mean a new application and qualifying for a mortgage all over again.
> 
> If there is no mortgage, you don't need bank approval.
> 
> Also, in other provinces, you don't even need bank approval. I know a guy who had a co-signer for a mortgage. A few days after getting the mortgage, he went down to land titles with his co-signer and took them off title. The bank, of course, is still registered against the property, and the co-signer is still on the hook should it go into default, but he co-signer no longer had claim to the property. In this case, nothing happened, but the risk isn't with the bank, its with the person who was removed from title. Probably why it's not required in all provinces.



JAG - I have to say, it seems this is a larger head ache to deal with. haha. Maybe it's easier to just leave it as it is, and I do have in the will that the house and it's contents will pass on to me.

There is a mortgage on the house, so that's another thing to deal with.

Seems the more I read about it, the more we might decide to leave it as it is, and the only thing really that will be put thru probate is the house in this case. Everything else has a beneficiary, and I will be on all her accounts.

When the probate tax is applied, from what I read it's from the value of the estate. Is it just usually the house? My mother does not have a lot.

THank you


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## Just a Guy (Mar 27, 2012)

The probate tax (if appropriate, not all provinces have it) is applied to the value of the estate. The estate is all the things that remain in the deceased possession at time of death minus insurance. So, if everything that is given away before, or in a joint ownership situation is not part of the estate.

It's not really complicated, but there are implications that you need to consider, hence the reason why people involve lawyers...


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## twa2w (Mar 5, 2016)

Bradycat, a few points
Yes in Ontario, you and your mother can add your name to her house without going to a lawyer. Some clerks at the titles office are very helpful, some are not, so be prepared. They will advise you on the paperwork required. It is not especially difficult.

Call the mortgage company and ask about adfing your name to title. In my experience, tney will not usually object. You should not have to requalify in my my opinion even if they want you added to the mortgage. They still have the original mortgagor( your mother) and have the benefit of added mortgagor- you.

If you are added to title you do not have to be on the mortgage account or on the utility records.

The transfer to joint names will not affect your income tax in any way at this time.

The pricipal residence reporting is new and the rules in a situation like yours are not clear. The reporting is done only when a principal residence is sold.
The house remains your mothers principal residence even with multiple owners and she will still get principal residence exemption.
It would be my thinking that she may not have to report it at this time but that is unclear IMO so she may want to indicate she has added you to title when she files her income tax for 2017 tax year. Then when she passes, it should be noted on the final tax return that the property was transferred to you. It would then be your principal residence. You can call CRA for guidance. 
According to CRA a principal residence is not divided by ownership. I have posted the link several times on this site and others. If I own a house with 2 other people and it is my principal residence, it is 100 my principal residence and 100% of any gain is exempt even if the other people on title have other principal residences.

The reasons for not going on title are many.
Not just for family problems at estate time. Remember, if your brothers are married with kids, you could be dealing with a spouse or exspouse.
If you get sued or go bankrupt, the house is at risk. 
If you marry and then divorce.
Having the house and mortgage may affect your ability to borrow.
There are a number of other issues I am sure you could Google. Fortunately the horror stories people talk about seldom happen but get blown out of proportion.

Are you doing the wills, poa, poapc, yourself or having a lawyer do them?
Make sure you have it properly witnessed. You may want to have you and your brothers sign an sffidavit or letter dated with the will and witnessed, stating you are all aware of the contents of the will and agree with the dispositions.
I do recommend a lawyer for the will. When I did work reviewing wills, about 50% of wills done by lawyers contained poor wording, errors or potential errors that could cause issues later. Most were minor and unlikely to be a problem but the potential was there. With wills done by individuals, they tended to be simpler but the issues were more prevelant and certainly more egregious.
POA'S done by individuals, unless done on standard format, are often rejected by banks due to improper setup.

Probate is applied to probatable assets. This is any and all assets solely in her name, or without beneficiaries.
Any assets that are joint with right of survivorship, or have beneficiaries usually pass outside probate. If her other assets, like car etc, are limited you can usually avoid probate.


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## bradycat (Mar 5, 2017)

hello twa2w,
Thank you for your input. I will make a trip to the land registry office, to get the details in needing to do that. Also will inquire with my mother, at her bank regarding her mortgage on putting me on there also. I haven't had time, but will call CRA in this instance too, to get clarification on certain things.

As for witnesses to the will. we have my mother's sisters doing that. And good ideal on the affidavit, but again, if you knew us, we are not that "type" of family to squabble over money, and we help each other out with money as well if someone needs it. So there is no worries there, trust me. But I do understand you and the others stating what "can" happen if someone fights the will, but again, we won't have that issue.

As for the will, it's a kit, and it's pretty detailed in what you need to fill in, and helps you add sections too. So I am not worried on that either. I will be using the same will kit when I have to do mine.

I have a question, if I am just listed in the Will, that the residue of the home is left to me and it's contents, and I am not on the deed. Will there be any issues there? It would have to go thru probate the house no?? or yes??

Thank you for your input as well.


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## twa2w (Mar 5, 2016)

Yes, if you are not on title to the house, the will has to be probated in order to transfer title to you. 
The contents and personal effects have little real value. It may be worth a lot to you, but think of how little used furniture etc goes for on Kijiji.
There is no ownership documentation, so if you and your family agree you get the contents, I don't believe it has to be included in probate.
Just make sure the witness to the will are not executors or beneficiaries to the will. I usually suggest getting affidavits of execution done for the witnesses. You will need these down the road for probate. Given they are your aunts it may not be a concern unless they predecease or become incompetent.

I know you know your family and I don't but you as executor may be dealing with other parties ie widows, ex wifes, children depending on how the will is worded and what happens between now and your mothers passing. 
I have had people swear the same things to me only to have things chsnge, before the testator dies. A divorce, an early death of a beneficiary, a marriage, a falling out, etc.
Better safe than sorry.


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## bradycat (Mar 5, 2017)

OnlyMyOpinion said:


> I've never read of this being recommended simply to avoid (1.5% in Ontario) probate fees.
> Make sure you and your mother are aware of the implications of doing this. Do some research first. Make sure it is done correctly if you proceed.
> - She will lose the ability to sell and 'cash in' the value of her house in the event that she needs the money for additional income or health care.
> - She will be deemed to have 'sold' half of her house at the time so she will need to get a fair market value (fmv) and report this on her income taxes. Presumably this is her principal residence so there will be no capital gains tax.
> ...



To your comment, I'd rather keep money in my pocket then the governments pocket. We pay them enough already, why should they reap money off death people. Just saying.


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## twa2w (Mar 5, 2016)

Bradycat, assets that are joint with right of survivorship or that have a beneficiary generally do not require probate. This would be things like jointly owned real estste, joint bank accounts and investments, TFSA'S, RSP'S, life insurance etc.
Single name real estate, investments and accounts normally require probate.
Small estates with a will can also avoid probate. Usually a bank will release accounts without probate if the probateable assets are under 25,000 although this will vary from bank to bank. The will has to be clear cut with no hint of dispute ie no ex spouses with support or children totally left out etc etc. The bank requires a bond of indemnity from the executor and may require spouse( if surviving) and children of the testator to sign off.
Even the MTO in Ontario with transfer title on a car, with a will and death cert.
So pretty easy to avoid probate if you wish.
While it rarely happens in transferring property to joint names to avoid probate, issues can arise for a number of reasons and I think other posters have have laid this out. I would make sure the testator is aware of those risks and is making an informed decision. 
Not sure how old you and your family are or your financial circumstances, but generally speaking, the younger you are( and the testator), the more the potential there is for things to change or for issues to arise. I am getting the sense your mother may be older or not well which would certainly influence the decision.
There are risks and costs to either way of proceeding . Have a family meeting with your mother and brothers after you have the information from the land titles and mortgage Co.
Make the decision you all feel comfortable with whether or not the posters here agree with it. 
Best of luck.
J


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## sags (May 15, 2010)

According to this lawyer website, jointly owned property is included in probate.

_The Supreme Court made a definitive statement as to how the courts must deal with such cases. It is now law in Canada that whenever a parent gratuitously transfers property into joint names with an adult child, the Court will presume that the property that was transferred was not intended to pass to such child on the death of the parent, but was intended to form part of the deceased parent's estate to be distributed in accordance with his or her Will. If the child/joint owner asserts that the jointly held property was intended to pass to them alone on the death of the parent, the onus is on the child to prove that this was the parent's intention on a balance of probabilities.
_
https://nelligan.ca/article/estate-planning-jointly-held-assets/


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## Oldroe (Sep 18, 2009)

In our case we sold my parents stuff at auction and the house. The cash was deposited in account with my parents my 3 sisters and me on it. We sign final papers for house next tues. With the POA at some point we will disturbed the money.


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## carverman (Nov 8, 2010)

sags said:


> According to this lawyer website, jointly owned property is included in probate.
> 
> _The Supreme Court made a definitive statement as to how the courts must deal with such cases. It is now law in Canada that whenever a parent gratuitously transfers property into joint names with an adult child, the Court will presume that the property that was transferred was not intended to pass to such child on the death of the parent, but was intended to form part of the deceased parent's estate to be distributed in accordance with his or her Will. If the child/joint owner asserts that the jointly held property was intended to pass to them alone on the death of the parent, the onus is on the child to prove that this was the parent's intention on a balance of probabilities. _


_
_


Yes, that is why you need to go to a lawyer. I was in the same situation a couple of years ago and
then my mother's estate would be on the hook for paying probate fees on her half interest in my
property which would be considered "sold" I believe, requiring a valuation at the time of her death.
It doesn't matter whether I'm still living in the house.

Also, the paper work HAS to be there in case there is a dispute amongst
siblings or with the Ontario gov't/CRA or any other interested parties.

I did this to protect my estate in case of my mother's passing before I do.

Right now, I am the sole owner of my property listed on titles, therefore any savings plans + my property has to go through probate..no choice there. Upon my death, the property cannot be sold until the probate court clears my estate through my official lawyer drawn up will with all the necessary boiler plate clauses.

The only way to avoid excessive estate taxes that have to be paid up front to process probate is to sell off the house firs, then transfer all the money to an adminstrator to be put into trust for my LTC.

Not sure what is involved there, but besides the trust issue, but that would require a new will and of course finding somewhere else to rent to live. 

I used to do it with a will kit, but I have found in the last few years, will kits may not be sufficient where there is any kind of dispute requiring any legal involvement.



> Estate Administration Tax (otherwise known as probate tax or probate fees) – approximately 1.5% of the value of the estate (use our probate fees calculator to approximate the amount of Estate Administration Tax payable). This is the only true 'estate taxes' payable in Ontario. Income taxes due for the year of death.


So for a $400k estate value determined at the time of death, the executor has to pay the Ontario
Gov't $6000 upon filing the probate papers. 

Greed.


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## carverman (Nov 8, 2010)

twa2w said:


> Bradycat, assets that are joint with right of survivorship or that have a beneficiary generally do not require probate. This would be things like jointly owned real estste, joint bank accounts and investments, TFSA'S, RSP'S, life insurance etc.
> Single name real estate, investments and accounts normally require probate.
> Small estates with a will can also avoid probate. Usually a bank will release accounts without probate if the probateable assets are under 25,000 although this will vary from bank to bank. The will has to be clear cut with no hint of dispute ie no ex spouses with support or children totally left out etc etc. The bank requires a bond of indemnity from the executor and may require spouse( if surviving) and children of the testator to sign off.
> Even the MTO in Ontario with transfer title on a car, with a will and death cert.
> ...


Yes, and things do change as time goes on, divorces, siblings in financial jeopardy requiring their "share of the parents estate", (where previously they were willing to let one sibling have it all), mortgage changes (refinancing), and perhaps other issues unknown at the time when dealing with monetary issues these days.


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## twa2w (Mar 5, 2016)

"According to this lawyer website, jointly owned property is included in probate."

According to the article it says no such thing and I quote "Although the Supreme Court has decided that assets held jointly are presumed to be distributed as part of one's estate, the value of such assets will continue to be excluded from the calculation of estate administration tax."



The following quote from the article is why I suggested Bradycat get affidavits from her brothers and why she is suggesting the will will state she gets the mothers share of house even though it joint with right of survivorship.

"The Supreme Court made a definitive statement as to how the courts must deal with such cases. It is now law in Canada that whenever a parent gratuitously transfers property into joint names with an adult child, the Court will presume that the property that was transferred was not intended to pass to such child on the death of the parent, but was intended to form part of the deceased parent's estate to be distributed in accordance with his or her Will. If the child/joint owner asserts that the jointly held property was intended to pass to them alone on the death of the parent, the onus is on the child to prove that this was the parent's intention on a balance of probabilities." 
but of course this is only the case if it is disputed and goes to court and affidavits from the mother and brothers would negate any dispute. Period


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## bradycat (Mar 5, 2017)

Hello,
Thank you for all your input in this matter. Just got back from the land registry and I have to go through a lawyer, if I am to be put on the title of the house. The lady explained that because it's all done on the computer, there is no way around it and you need a lawyer to do this now - in Ontario.


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## carverman (Nov 8, 2010)

bradycat said:


> Hello,
> Thank you for all your input in this matter. Just got back from the land registry and I have to go through a lawyer, if I am to be put on the title of the house. The lady explained that because it's all done on the computer, there is no way around it and you need a lawyer to do this now - in Ontario.



I'm glad that you did that. 
As I explained in one of my earlier posts, you have to engage a lawyer to do the title transfer
from your mother to you as a parental gift. This is still allowed (at least so far in Ontario), but the title transfer has to be made by a lawyer and there is a sum of $1 to make it a legal transfer. 

The lawyer will draw up the papers for your mother and you to sign and register the property in your name only.

*If the property is owned jointly* (as right of survivorship), 50% of the FMV (fair market value) will be assigned to your mother's estate, once the death is registered, and her estate will be responsible for paying the *estate tax on her half interest on the property*, and any other monetary investments/bank accounts she may have had in possession until 1 minute after death, because it
then has to go through probate court. 

If you do this ASAP, before something happens, there will be no estate taxes that your mother will have to pay on the the transferred property to you as a gift, , only the land titles registration fee and his fee.

While others on this forum may have their own opinions, I know for sure that this will work, as I had it done a couple years ago.


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## Mukhang pera (Feb 26, 2016)

carverman said:


> I
> 
> *If the property is owned jointly* (as right of survivorship), 50% of the FMV (fair market value) will be assigned to your mother's estate, once the death is registered, and her estate will be responsible for paying the *estate tax on her half interest on the property*, and any other monetary investments/bank accounts she may have had in possession until 1 minute after death, because it
> then has to go through probate court.


It surprises me that estate tax would be payable on an asset passing by right of survivorship, but such might be the law of Ontario, and carver says he knows from first-hand experience. Kinda' puts the lie to the reference to the article saying that assets jointly held would not attract the tax:



twa2w said:


> "According to this lawyer website, jointly owned property is included in probate."
> 
> According to the article it says no such thing and I quote "Although the Supreme Court has decided that assets held jointly are presumed to be distributed as part of one's estate, the value of such assets will continue to be excluded from the calculation of estate administration tax."


I get the sense that twa2w is a wills and estates lawyer and perhaps can clarify (at least if practising in Ontario). I do not pretend to know Ontario law and I am content to defer to carver's actual experience/twa2w's expertise.


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## carverman (Nov 8, 2010)

Mukhang pera said:


> It surprises me that estate tax would be payable on an asset passing by right of survivorship, but such might be the law of Ontario, and carver says he knows from first-hand experience. Kinda' puts the lie to the reference to the article saying that assets jointly held would not attract the tax.


Sorry about the error of omission.

What qualfies my statement is that in order to escape estate taxes , both parties (mother + child)
have to declare it as their principle residence. This was NOT the case for me. My house in Ottawa which had my mother listed as joint tenant with me (and right of survivorship) was MY PRINCIPLE RESIDENCE.....NOT hers. 

Her residence is in Toronto.
So the way it was explained to me, (assuming she died before me) , is that the one half of the FMV of my principle residence would also be attached to her estate and estate taxes payable on one half of my property, which seemed uncessary in my case.:concern:

That is why we decided to get the title updated, removing her as co-owner. As it stands now, my
estate, with me being sole owner, will have to pay estate taxes on my death. 
We didn't want to have to pay estate taxes TWICE, even if a few years apart. 




> I get the sense that twa2w is a wills and estates lawyer and perhaps can clarify (at least if practising in Ontario). I do not pretend to know Ontario law and I am content to defer to carver's actual experience/twa2w's expertise.


Again, the situation may vary in some cases, I don't know. But this is the reason that I went to a lawyer to consult and then get the transfer done as a gift from my mother. My understanding that this is still
allowed (at least so far) in Ontario. 

My mother had her own lawyer in Toronto do some of the paperwork at her end, and I had my lawyer
do it at my end in Ottawa.
Since she is now 92, it was necessary to do it in an expedient manner. My mother has never lived in my principle residence. In 1996 it was deemed necessary to add her name to the title as joint tenant to ensure that my EX (greedy as she was) would not try and grab half of the value of my property that I bought in 1996, while separated, but not legally) as there was quite a legal battle going on on support and property, and the divorce didn't finalize until 1998. So at the time it was necessary for my own protection.


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## bradycat (Mar 5, 2017)

cc


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## bradycat (Mar 5, 2017)

twa2w said:


> "According to this lawyer website, jointly owned property is included in probate."
> 
> According to the article it says no such thing and I quote "Although the Supreme Court has decided that assets held jointly are presumed to be distributed as part of one's estate, the value of such assets will continue to be excluded from the calculation of estate administration tax."
> 
> ...


Hello, So the affidavit would state, that my brothers indicate that I am to get the house then?? Is that what you mean? and that they state they know fully well what is in the will also??

Thank you.


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## bradycat (Mar 5, 2017)

carverman said:


> I'm glad that you did that.
> As I explained in one of my earlier posts, you have to engage a lawyer to do the title transfer
> from your mother to you as a parental gift. This is still allowed (at least so far in Ontario), but the title transfer has to be made by a lawyer and there is a sum of $1 to make it a legal transfer.
> 
> ...


Hello C,

So we still have to pay taxes on my mother's half when she passes?? If it's a right of survivor ship, and the home will be my principle residence. there is taxes still to be paid?
This is new, I have not read this anywhere when I have done searches.

Can you explain why? are you a lawyer by chance?

Thank you.


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## bradycat (Mar 5, 2017)

Hi Again,

Man there is so much to consider. We want to pay as little to the tax man as possible, why we all agreed to do this. I live with her and this will be my principle residence when she passes, I will not be moving.

And if I get an affidavit from my brothers stating I am getting the house outright and they are aware of all in the will. will avoid the taxes. Because that one statement
The Supreme Court made a definitive statement as to how the courts must deal with such cases. It is now law in Canada that whenever a parent gratuitously transfers property into joint names with an adult child, the Court will presume that the property that was transferred was not intended to pass to such child on the death of the parent, but was intended to form part of the deceased parent's estate to be distributed in accordance with his or her Will. If the child/joint owner asserts that the jointly held property was intended to pass to them alone on the death of the parent, the onus is on the child to prove that this was the parent's intention on a balance of probabilities." 

Means that taxes will have to be paid, unless it's clearly stated, and as I said it would be in the will as well.

What do you think?\
Thanks.


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## Just a Guy (Mar 27, 2012)

Carverman's example make more sense now...

You pay capital gains on any secondary properties, not your primary one. In carverman's case, what he was inheriting would be a secondary property, like a rental and his half would be subject to capital gains. He didn't live there, so his half is considered an investment.

When the property is deemed sold upon death, half the property would be subject to capital gains, I believe his mother's portion is the actual half that is tax free as it was her primary residence, but I could be wrong...my way makes more logical sense, but who ever said that laws had to make sense.

Later on, when carverman decides to sell it, the entire property would be subject to the gains going forward from the time of death (as the gains up to time of death have been accounted for). 

If the property was your primary residence, as it is with your mother, and you were joint owners with right of survivorship, I don't think any capital gains should apply.

It's weird that the estate paid he gains, but it probably was just simpler since carverman was the only beneficiary, to just take it out of the estate. The gain should have been his to pay, something he could probably have reduced with his nortel share losses, it may have been a mistake by the person doing the probate that cost him money (since they probably didn't have any capital losses in the estate).


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## OnlyMyOpinion (Sep 1, 2013)

_"Man there is so much to consider..."_
Well, that was what I tried to point out in post #3 but...

I'm not sure if this has been suggested in subsequent posts, and I'm reluctant to even mention it - but has she considered just gifting you the entire house now? Then you own it 100%, done. 

I don't actually recommend this to her since she loses its value with no compensation, and is at your mercy for being allowed to live there and in the event of future financial need. And worst case you could lose the house and both of you be without a home. 
But if she is of sound mind and judgement and that is her intent anyway, then it might be considered and discussed. 

You still need to talk to a lawyer and make sure the gift is papered properly, not open to future challenges, and that she remains eligible to 'claim' it as her personal residence in the year she disposes of it. You still want to establish FMV as well in case changes to the principal residence rules affect you in the future.


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## sags (May 15, 2010)

I doubt mom can "gift" the home if there is still an outstanding mortgage on it. 

The mother would owe a mortgage on an security asset she no longer owns.

People are confusing probate "fees" and "income taxes" with estate taxes. There are no estate taxes in Canada.

For property or assets (including financial assets) there are income tax considerations, but that is always the case..........estate or not.

Assets including homes are listed on the probate papers.......but they may be excluded from paying probate fees when proper documentation of joint survivor ownership are provided to the court.

Probate gives the banks authority to recognize the executor's power to disperse the estate. 

Unless an estate is very minimal and there are no property assets, banks will insist on probate authorization to protect themselves.

Wills can be fraudulent. Probate provides a court document number than can be verified.

Probate papers list asset values at the time of death and to whom the assets were dispersed for the CRA.

If taxes on the assets aren't paid in full by the estate, the CRA has a paper trail to follow the assets and collect the taxes.

Listing assets and paying probate fees on those assets are two different things.


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## carverman (Nov 8, 2010)

bradycat said:


> Hello, So the affidavit would state, that my brothers indicate that I am to get the house then?? Is that what you mean? and that they state they know fully well what is in the will also??
> 
> Thank you.


In my case, my brothers are in full agreement that I should get the full ownership, since I bought the house with my down payment and paid the taxes and the mortgage until it was paid off. I was the one that was listed on the mortgage with CIBC. My mother agreed to sign in order to protect me before my
divorce came through. 

In your case, your mother's will and the transfer of the deed from her to you as a parental gift while still living are two separate things.

Whether your brothers have privy to your mother's will or not, the executor will certainly need the original, as copies are not allowed for probate, only the original signed in ink and witnessed will. For the will to be legal, there has to be witnesses of your mother's signature.
The other thing that usually is done that the same time is POA (power of attornery) for finances and health care.

The affividavit could be challenged in the future, if the brothers and you for some reason decide
not to get along.


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## carverman (Nov 8, 2010)

sags said:


> I doubt mom can "gift" the home if there is still an outstanding mortgage on it.
> 
> The mother would owe a mortgage on an security asset she no longer owns.


That may be true, that is why the OP needs to consult a lawyer. The mortgage company would have to be contacted to see if the mortgage can be closed and re-issued in the OP name providing the OP meets the mortgage criteria, but a lawyer would have to be employed .



> People are confusing probate "fees" and "income taxes" with estate taxes. There are no estate taxes in Canada.


 I beg to differ.



> In Ontario, probate fees (technically called the “*estate administration tax*”) are levied on a deceased taxpayer's estate at the rate of $250 on the first $50,000 of assets and $15 per $1,000 thereafter.


So whether you want to call it potato (probate fee) or potatoe (estate admin taxes), its all the same.

Income taxes are a separate issue and filed after the person is deceased. Once for the deceased person
and then for the estate of the deceased person.


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## bradycat (Mar 5, 2017)

carverman said:


> In my case, my brothers are in full agreement that I should get the full ownership, since I bought the house with my down payment and paid the taxes and the mortgage until it was paid off. I was the one that was listed on the mortgage with CIBC. My mother agreed to sign in order to protect me before my
> divorce came through.
> 
> In your case, your mother's will and the transfer of the deed from her to you as a parental gift while still living are two separate things.
> ...


Hello My brothers will get a copy of the will, and personal care, and POA, before it's signed, so they can look it over, and then once it's all agreed upon,,,,,,,,then we have it signed by my mom's 2 sisters, to get notarized.


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## sags (May 15, 2010)

carverman said:


> That may be true, that is why the OP needs to consult a lawyer. The mortgage company would have to be contacted to see if the mortgage can be closed and re-issued in the OP name providing the OP meets the mortgage criteria, but a lawyer would have to be employed .
> 
> 
> I beg to differ.
> ...


True about the income tax filings, but as of the 2016 tax year the sale of property must be disclosed on the tax return for the year of sale.

Gifting all or a portion of the home would be considered a sale by the CRA.

_When a principal residence is sold, the gain is not taxable if it has been the person's principal residence for the whole time it has been owned. This is because the principal residence exemption eliminates the capital gain. In years prior to 2016, there was no need to report the sale on your tax return if the entire gain was eliminated. However, on October 3, 2016 the federal government announced that, starting with the 2016 tax year, the sale of a principal residence must be reported on Schedule 3 of the tax return (see below for more filing information), in order to claim the principal residence exemption. This change applies also for deemed dispositions, such as a deemed disposition due to change in use of the property._


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## twa2w (Mar 5, 2016)

Well, I wasn't going to add anything further to this thread but here goes.
Transfering property. Your mother can add your name to title or she can transfer the property to you in full. As carverman states, there has to be consideration. In family cases this is often done for the sum of 1.00 and ' natural love and affection'. Athough I don't believe that phrase is used any more. When you consult with a lawyer you can ask about land transfer tax but I don't believe it applies in your case if the transfer of title is done for 1.00 between mother and child.
The mortgage. There are several things that could happen here. If you are added to title, the mortgage company may ask for a requalification for both you and your mother. More likely they will simply have you and your mother sign an assumption agreement assuming the mortgage from her alone. If the property is transferred entirely to you, the mortgage company will ask you to qualify and have you assume the mortgage. More unlikely is they will ask you to qualify for and register a new mortgage and pay off your mothers mortgage.
Speak to the mortgage company. They all have different procedures.
Probate fees. If probate is required you will pay a probate fee ( or tax). However if the house is JWROS or in your name only, there will be little need for probate. If all bank/ investment/registered accts are joint, or have a named beneficiary you will not need probate. Everything will pass to the survivor acct holder or to the beneficiary. Most estates do not go to probate in the situation you are describing.
The Supreme Court case mentioned above. This decision provides direction to the courts if there is a dispute. Your family is clear that the house is intented for you so no one should dispute it so you should not end up in court. To be double sure, have your mother sign an affidavit that her intention in adding your name to the property is to have the property transfer to you on her death and your brothers will not share in this. Have an addendum to the affidavit signed by your siblings that they are aware of the intentions of the transfer and they concur. Attach this to the will.
Income tax. As explained previously since the property is your mothers principal residence, there will be no tax. Not now, nor when she passes, even if you are added to title. ( unless the law changes). The only thing that is still nebulous is how to report the partial transfer. I am not clear if it has to be reported since the house remains her PR. When she passes, the transfer, I believe, would be reported on schedule 3 as estate disposition to surviving owner. However this is subject to confirmation,clarification by revenue Canada. When you evenually sell, you will be required to report as your PR. Date of acquisition I suggest would be when your name was added to title or when full title vested in you.( again need clarification as new rules).
As far as your mothers final tax return, there may be some income tax for any capital gains on non PR property or stocks, on any interest/ dividends earned to date of death and on the value of any rsps and RIFs.( even if joint or beneficiary)
If assets remain in the estate long enough to earn income, a trust( estate) return may have to be filed.
Sorry, losing track of everything I wanted to cover. 
PM me if you wish.


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## carverman (Nov 8, 2010)

sags said:


> True about the income tax filings, but as of the *2016 tax yea*r the sale of property must be disclosed on the tax return for the year of sale.
> 
> Gifting all or a portion of the home would be considered a sale by the CRA.
> 
> ...


Ok, it looks like there have been some changes in Ontario since I had my title transaction done in 2014.
Back then, the capital gains on her half interest in my principle residence would still have been applicable at time of her death, since it was never her principle residence. 

Since there was no mortgage on the property, I had paid it off in full in 2006, it was more of a paperwork exercise since my mother had never paid the mortgage on it, although the property taxes were in both our names since she was listed on the tax roll.

Obviously, there was no sale of the property before or after the change of title, nor a death in the family, so my case is different. 

*TO OP:*
As others have mentioned, you cannot get any legal advice on what to do from a discussion board such as CMF.
Best to seek the advice of a competent lawyer and find out what your options are after 2016. Things are getting more complicated it seems.


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## carverman (Nov 8, 2010)

twa2w said:


> Transfering property. Your mother can add your name to title or she can transfer the property to you in full. As carverman states, there has to be consideration. In family cases this is often done for the sum of 1.00 and ' natural love and affection'. Athough I don't believe that phrase is used any more. When you consult with a lawyer you can ask about land transfer tax but I don't believe it applies in your case *if the transfer of title is done for 1.00 between mother and child.*


This is the way it was done for me by my lawyer and my mother's lawyer. 



> *The mortgage.* There are several things that could happen here. If you are added to title, the mortgage company may ask for a requalification for both you and your mother. More likely they will simply have you and your mother sign an assumption agreement assuming the mortgage from her alone. If the property is transferred entirely to you, the mortgage company will ask you to qualify and have you assume the mortgage. More unlikely is they will ask you to qualify for and register a new mortgage and pay off your mothers mortgage.


This would have to be done before the gifted title transfer. I didn't have a mortgage in my case, so it was a lot easier for the two lawyers to speed up the title transfer paperwork and register the title transfer in Ontario (2014) before the Feds came up with the new rules in 2016.




> Probate fees. If probate is required you will pay a probate fee ( or tax). However if the house is JWROS or in your name only, there will be little need for probate. If all bank/ investment/registered accts are joint, or have a named beneficiary you will not need probate. *Everything will pass to the survivor acct holder or to the beneficiary*. Most estates do not go to probate in the situation you are describing.


Correct, as long as there are no separate bank accts..otherwise there is a minimum probate fee in Ontario, I believe. 


> In Ontario, probate fees (technically called the “estate administration tax”) are levied on a deceased taxpayer's estate at the rate of *$250 on the first $50,000 of assets *and $15 per $1,000 thereafter.
> http://ontario-probate.ca/probate-basics/probate-fees-taxes/





> The Supreme Court case mentioned above. This decision provides direction to the courts if there is a dispute. Your family is clear that the house is intented for you so no one should dispute it so you should not end up in court. To be double sure, have your mother sign an affidavit that her intention in adding your name to the property is to have the property transfer to you on her death and your brothers will not share in this. Have an addendum to the affidavit signed by your siblings that they are aware of the intentions of the transfer and they concur. *Attach this to the will.*


Also, as I suggested in a previous post, in a case where one sibling inherits the property and parents bank accounts, it should be drawn up by a lawyer when all are in agreement and an *OFFICIAL will* made at the lawyers office, not a will kit, where any future dispute could be contested by omitted wording or clauses in the orginal will. The original will can always be updated for any changes necessary. 

My legal will has a couple extra pages of what they call legal 'BOILER PLATE' clauses and the original is kept on file in the lawyers office.
That way the location of the orignal signed and witnessed will is known,and it can be executed when necessary. 

The lawyer issued *official copies stamped and initialled at his office* of my will to me, my executor and co-executor. 



> *Income tax.* As explained previously since the property is your mothers principal residence, there will be no tax. Not now, nor when she passes, even if you are added to title. ( unless the law changes). The only thing that is still nebulous is how to report the partial transfer. I am not clear if it has to be reported since the house remains her PR. When she passes, the transfer, I believe, would be reported on schedule 3 as estate disposition to surviving owner. However this is subject to confirmation,clarification by revenue Canada. When you evenually sell, you will be required to report as your PR. Date of acquisition I suggest would be when your name was added to title or when full title vested in you.( again need clarification as new rules).
> As far as your mothers final tax return, there may be some income tax for any capital gains on non PR property or stocks, on any interest/ dividends earned to date of death and on the value of any rsps and RIFs.( even if joint or beneficiary)
> If assets remain in the estate long enough to earn income, a trust( estate) return may have to be filed.
> Sorry, losing track of everything I wanted to cover.
> PM me if you wish.


Thanks for the clarifications.


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## twa2w (Mar 5, 2016)

Carverman wrote "Ok, it looks like there have been some changes in Ontario since I had my title transaction done in 2014.
Back then, the capital gains on her half interest in my principle residence would still have been applicable at time of her death, since it was never her principle residence." 
If that was true, she would have had to pay capital gains when she removed her name frim title as that would be a deemed disposition at fair market value. Fortunately this is not true. If your mother owns her principal residence plus is on title to your principal residence ( jointly with you), there is no capital gains to her when your PR is sold or if she passed away while on title. I assume she did not pay capital gains when she removed her name from title. If she did she shouldn't have.
Many people including some lawyers and even accountants believe otherwise but a PR exemption is on the full property regardless of additional names on title.. This is clearly explained on the CRA website but you do have to dig for it.

Also just to note on probate. Most, if not all, banks will waive the requirement for probate when dealing with simple estates where there is a will and less than 25,000 in assets. A bond of indemnity will have to be signed. There is no legal requirement for probate. It is only required if requested by a bank or goverment agency etc to transfer ownership of a will. I have seen banks waive the requirement for probate in cases with much much larger estates.

Bradycat. If your mother wanted to transfer you the full title, she could protect her interest in the home by registering a ' life interest' on title. This gives her the right to live in and use the home until she dies. You could not sell the home without her releasing the life interest. Likewise you could not toss her out in the street. I know you would not do that and likely have no need to do register a life interest but another poster mentioned those would be risks for mother, in theory, to moving title entirely to you. So thought I would mention this rarely used method.

Yes it can get complicated but keep it simple. Talk to the mortgage company to find their process and have a family discussion. Take it one step at a time.


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## carverman (Nov 8, 2010)

twa2w said:


> Carverman wrote "Ok, it looks like there have been some changes in Ontario since I had my title transaction done in 2014.
> Back then, the capital gains on her half interest in my principle residence would still have been applicable at time of her death, since it was never her principle residence."
> 
> If that was true, she would have had to pay capital gains when she removed her name frim title as that would be a deemed disposition at fair market value. *Fortunately this is not true*. If your mother owns her principal residence plus is on title to your principal residence ( jointly with you), there is no capital gains to her when your PR is sold or if she passed away while on title. I assume she did not pay capital gains when she removed her name from title. If she did she shouldn't have.


True. My lawyer explained to me that no capital gains would be payable by my mother, due to her gifting at that time.



> Many people including some lawyers and even accountants believe otherwise but a PR exemption is on the full property regardless of additional names on title.. This is clearly explained on the CRA website but *you do have to dig for it*.


as always



> Also just to note on probate. Most, if not all, banks will waive the requirement for probate when dealing with simple estates where there is a will and less than 25,000 in assets. A bond of indemnity will have to be signed. There is no legal requirement for probate. It is only required if requested by a bank or goverment agency etc to transfer ownership of a will. I have seen banks waive the requirement for probate in cases with much much larger estates.


Good to know, as my executor would have to come up with the money for probate fees, or take it out of my savings at the time. 


> Yes it can get complicated but keep it simple. Talk to the mortgage company to find their process and have a family discussion. Take it one step at a time.


This has been a very productive thread, that concerns many of us...when faced with the circumstances of life.


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