Not everything a person owns will be part of the assets that are distributed under the terms of a will. Real estate, pensions, bank accounts and insurance can pass outside of a will.
In British Columbia we call this joint tenancy. If two people buy property together, the phrase “as joint tenants” is used on the title to designate joint ownership. This means that if one of the owners dies, title transfers to the survivor. No probate fees or taxes are triggered at that time (though if it is not a principal residence, there may be capital gains taxes once it is sold, always consult an accountant about tax matters). Transfer title essentially involves sending a form and a death certificate to the Land Title Office. If you don’t specify “as joint tenants” on the title, then your share of the property would pass according to the terms of your will or under the laws of intestacy should you die without a will.
Bank accounts held in joint names will pass to the surviving owner outside of the terms in the will. The same thing applies with RRSPs and life insurance policies, where people have named a beneficiary. This means that it is possible that the surviving spouse may not need to make an application for probate because everything passes outside of the will. It can also raise an issue if one child is named jointly on a bank account to help manage a parent’s day to day affairs because they would stand to gain the entirety of the account and wouldn’t have to share it with their siblings under the terms of the will. This has most definitely been the subject of lawsuits among children after they lose a parent.
So, when preparing a will, it is important to think about all the assets that you own, who is named as beneficiary, and make sure your will fits that situation. This also means that when a marriage ends, that these assets also need to be considered and updated. Not doing so can lead to an awful lot of money being spent on lawyers.
Disclaimer: This is not meant to constitute legal advice. I highly recommend speaking to a legal professional about your specific circumstances.
