RESOURCES

This question comes up weekly, if not daily in my practice sometimes.  The situation is often the same:  one parent has already passed.  One parent is still alive and living in the family home.  There could be any combination of children- 1 or more. The question becomes:  should the parent transfer the home to the children now?  Should they wait?  What to do?  (For the purpose of this exercise, we will consider “children” to be adult children of the elderly parents)

The first thing I tell clients is to take a breath. Step away for a moment.  And let’s assess the situation.  What is the long-term plan for the house?  Will the parent(s) stay in the home indefinitely?  Will they be moving into a long-term care facility at some point?  Will the equity from the house be needed to fund any long-term care?  Are the children planning to take over the home in the future to live in?  As a rental?  Or is the long-term plan to sell the house?

As most things in life are money/tax driven- the first step is to bring the accountant into the equation.  From there, a financial planner would be of great benefit as well.  To plan the options as far as dealing with the house, to minimize tax ramifications and provide the most available funds for the parent(s) and/or child(ren).  There are mortgage products available for elderly parents whereby they can continue to live in their home and use the equity in the home for their daily expenses.

There are so many options available, depending on the wants/needs of the parents.  Even when you make one plan to start, the plan may need to shift depending on life circumstances (health, financial, relationships).  So be prepared to have several plans available.

A very common request is to add a child to title while the parent is alive.  This way, in people’s minds, they will not need to pay “death taxes” when the parent is deceased. While in theory this may seem like a good option, not so in reality. If the plan is to sell the home after the parent’s passing and the child has never lived in the house, there could be capital gain taxes- which will exceed the probate costs! If there is an existing mortgage on the property, then guess what? To have the child on the title, the child will have to go on the mortgage as well.  And there could be land transfer tax costs!

Communications can begin as early as when you think of how to deal with an elderly parent’s property. Reach out to your real estate lawyer. Introduce yourself. Discuss the transaction you are contemplating. It will help guide you from the beginning. We are here to help and look forward to hearing from you

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Jonathan Hacohen is a Partner at Kormans LLP. His practice areas include Real Estate & Corporate Law, as well as Wills/Estates law. You can reach Jonathan at jhacohen@kormans.ca.

All blog entries are for your reading pleasure only and are not posted to provide legal advice. For your matter, we encourage you to consult with a lawyer to review and discuss your specific facts and circumstances.