Joint Ownership – Understand the Risks and Benefits
November 2023
As we age, we try to make life easier for both our families and ourselves. Many seniors transfer assets to joint ownership in order to avoid income taxes, but this is unlikely to succeed. You should think carefully before transferring assets to joint name, particularly if it is someone other than your spouse. Things that seem simple can sometimes create complications. This article is about “joint ownership with right of survivorship,” where you assets will normally go to the other owner(s) upon your death. Sometimes, assets, such as your home and other real estate, are held in both names as “tenants in common,” and while the name on the title may be similar, the rules are completely different. If you own 50% of a property as tenants in common, your ownership is transferred to your beneficiaries according to your Will, not to the other owner.
If a property is subject to income taxes when you sell it, a change to joint ownership with anyone other than your spouse may trigger immediate taxes. For example, assume you own your cottage only in your name. If you do not claim your cottage as a principal residence, then placing the cottage in joint name with one child would be treated by the Canada Revenue Agency as if you sold one-half of the property. If the property increased in value above its original cost plus later renovations after you built or bought it, then you will have taxes to pay on the gain. The other half of the property is still considered as owned by you and the gain will be taxed in the future when the cottage is sold or is given to your child, or upon your death.
Putting a bank account in a joint name will not trigger any taxes because there would have been no gain in value over the original deposit.
Remember how I said that transferring an asset to joint name could lead to more complicated issues? Let us use the bank account as an example. Assume you have several children, and you put your adult daughter on your bank account as joint holder. Why did you do this?
- Did you intend to transfer one-half of the bank account balance to that child now instead of later? If so, is it an early inheritance and does it reduce the amount she is entitled to through your Will?
- Were you only doing this for convenience so that she could help you with your banking? If so, do you have several children? Do you plan to give each of them an equal share of your assets when you die? How do you wish this bank account handled at that time?
- After your death, a joint owner will normally get ownership of that bank account. If you have $100,000 in the bank account, do you think your other children would question whether that daughter should be entitled to all of the money? Was it an additional gift or should her share from your Will be reduced to treat all children equally?
Be clear, in writing, when you transfer accounts to joint name to avoid such problems. Assume you have two children, and you transfer an asset to joint name with one child. What may happen when you die? If it is clear that you intended for that child to receive full ownership of the property at your death, it will pass to them clear of probate. If there is any doubt, and the other child claims half, then the first child will need to prove your intention was to give it them, or the court will divide it equally (after many legal fees and much loss of sibling love)).
These rules are based on a decision by the Supreme Court of Canada (Pecore v. Pecore, 2007 SCC 17). In summary, which you should review with your lawyer for clarification and certainty, states that:
- Joint accounts held with a minor child or a spouse will be deemed to belong to those individuals after death. This is legally called the presumption of advancement.
- Joint accounts held with adult children (whether still dependent or not) will be deemed to be held in trust by those children on behalf of the parent(s), and will form part of the parent’s estate to be divided in accordance with the Will. This is legally called the presumption of a resulting trust.
- These presumptions can be challenged (rebutted) by others where they have evidence to do so. For example, if one child has a document proving that the parent was gifting them that asset by putting it in joint name, then they have rebutted the trust presumption and may be able to keep the property to themselves.
You do not want your family and your executor to face dealing with such challenges, so be clear in your intentions, and, personally, I suggest avoiding use of joint ownership unless essential. (See my comments on use of a Power of Attorney below.) I was executor of an estate where the bank account was in joint name with a child. The family all agreed, including that child and all of their siblings, that the account was to be divided with everyone based on the Will. Before the money could be transferred to an estate bank account to pay the funeral, legal and other estate bills, the bank required written permission from the joint owner to move the money. From their perspective, the account now belonged to the joint holder. It took many weeks for the bank to satisfy themselves that this could be done, even after the joint owner gave them written permission – a long, unnecessary delay in settling the estate.
There is a difference between transferring the “beneficial ownership” of a property and simply putting a property in joint name for “convenience” with no real change in ownership intended. You cannot expect to have the best of both worlds – if it is for convenience only, i.e., you still beneficially own the property, then you will pay probate costs at death because the property will still form part of your estate to be governed by your Will. Alternatively, if you have transferred beneficial ownership, then you will avoid probate, but the property will be subject to any immediate income tax consequences in the year you transferred it to joint ownership. If you put it in joint name with one other person, the Canada Revenue Agency will assume that you transferred 50% of the ownership to that person. You need to report a sale at fair market value on that year’s tax return, and pay the related capital gains taxes. Even if the property is your principal residence it needs to be reported, although it may be exempt from taxes (but only if you file the proper forms). As jointly owned, the property will eventually be transferred to the joint owner on your death without probate fees. At that time, you will still need to pay taxes on your portion of ownership (e.g., 50% in my example above).
Speak to your lawyer about this. If you do not have a lawyer (and if you have no Will and Power of Attorney), in PEI, you can call the Community Legal Information Association of PEI www.legalinfopei.ca to obtain a lawyer referral. Other provinces also have public legal information associations that may offer this service.
If you have this “beneficial ownership” arrangement for your home, the non-beneficial owner is probably holding a share of your home “in trust” for you. New tax rules in 2022 and 2023 created some very important issues for you to discuss with a professional tax advisor. Almost all trusts, formal and informal, now need to file an annual T3 trust income tax return. A temporary exception for “bare” trusts was announced March 29, 2024, which likely applies to homes where beneficial ownership differs from legal title. However, the government said they would be announcing new rules in following months. In addition, if a residential property is owned by a trust, then that trust may also need to file an Underused Housing Tax (UHT) return if any of the beneficiaries of the trust are not Canadian citizens and not living in Canada. In addition, this was also the case in 2022 even all beneficiaries are Canadian residents. Proposed legislative changes in the Fall Economic Statement by the federal government on November 21, 2023 states that specified Canadian trusts with no non-resident beneficiaries will not need to file the UHT return for 2023 and later. You should seek professional advice because this legislation was not finalized at the time of my update to this article – and based on the proposed changes, a UHT return may be needed for 2022 even if not required for later years.
The positive side of joint ownership is the ease of transfer upon death. Probate fees are avoided because your Will is not involved. Probate fees in Prince Edward Island are about $400 for each $100,000 of assets (as of August 2018), but much higher in most provinces (e.g. 1.5% in some provinces). Executor fees may also be avoided. Executor fees often apply to the assets flowing through your Will and can typically be 3% to 5% of your assets. Certain lawyer’s fees are also based on the value of your assets. When a Will is probated it becomes a public document – anyone can read it. This is why the use of joint ownership also keeps things private.
There are some other serious downsides to think about when transferring something to joint ownership. For example, you could suffer serious financial losses if the other person has personal or business problems, gambling or addiction issues, is sued, or goes through a divorce. For example, if you own your home jointly with someone who declares bankruptcy, you could lose at least one-half of your home to the creditors. If your bank account is in joint name, the other person could spend all of the money without you being made aware.
If you need help with day to day banking and payment of bills, instead of using a joint bank account (or giving someone your credit card and personal identification number, which would make you personally liable for any fraudulent use), make a Power of Attorney. Giving someone a Power of Attorney to act on your behalf can be done for specific purposes, such as paying your bills and using your bank account for your purposes. That person can be held legally responsible if they do not act in your best interests, which is next to impossible to do with respect to joint accounts. A Power of Attorney is not difficult, and will be much safer than giving someone joint ownership.
You should also see my article on transferring your home to your children and keeping a “life interest,” if this is something you are considering. This procedure can lead to unexpected tax costs. Click here for that article.
It is important to understand all the possible consequences and get advice based on your situation.
Blair Corkum, CPA, CA, R.F.P., CFP, CFDS, CLU, CHS holds his Chartered Professional Accountant, Chartered Accountant, Registered Financial Planner, Chartered Financial Divorce Specialist as well as several other financial planning related designations. Blair offers hourly based fee-only personal financial planning, holds no investment or insurance licenses, and receives no commissions or referral fees. This publication should not be construed as legal or investment advice. It is neither a definitive analysis of the law nor a substitute for professional advice which you should obtain before acting on information in this article. Information may change as a result of legislation or regulations issued after this article was written.©Blair Corkum