Q. Not so long ago, our accountant suggested that one of our siblings be put on the deed to my mother’s house as she was becoming quite infirm and for estate planning purposes, if we had an individual who was on title as joint tenant, the property and its’ value would transfer automatically and not form part of the estate assets. The house was a large expensive house in Rosedale and would therefore incur a fair amount of estate taxes if its value flowed through the estate. As my brother was the closest to my mother, he was placed on title and several months later the inevitable happened and our mother passed away. She had made a provision in her will that her estate would be split equally among her three children. Upon sitting with the estate lawyer he explained that the house was now our brother’s and that the will instructed the executor to split the remaining assets among the three of us. We know this was not the intention of my mother. What are our options?
A. Technically, the lawyer you consulted with is correct. By right of survivorship, you brother is the sole owner of the property and has avoided having this asset form part of the estate and be taxed by the courts. If he wanted to, he could take a hard-line approach and try to shut the two of you out of the proceeds.
However, you are not without recourse. The first tactic is to approach your brother and try and work out a fair result.
Money and estates do strange things to families and your brother may dig his heels in. I would not advise him to do this as his lawyer, in the interest of family unity: Fair is fair.
Which is the next avenue of recourse. If you can prove that it was your mother’s intention by her will and her actions that all her assets be divided equally, you may be successful in convincing your brother he should be approaching this more equitably.
Also, at this point in time, you may want to consider hiring a lawyer that specializes in estate litigation.
– Jeffrey Cowan is the principal with Cowan Taylor and McGee, Barristers & Solicitors. The information in this article should not be relied upon as legal advice.
