Your New Home & Creating Your Will

By Howard M. Turk

The majority of individuals and couples buying homes that we see in our offices these days are first-time buyers. For most people, buying their first home is a major step. Most often the home they are buying becomes their most valuable asset. It is also very typical for these buyers to either have children or be planning on leaving children in the near future. With all these changes in their lives, and with the added responsibility of home ownership and parenting, a will is something that certainly should be considered as prudent.

There are essentially two primary ways in which a couple can take title to their new home. The first manner of title is called joint tenancy, the second is known as tenancy in common. Joint tenancy carries what in law is known as a right, of survivorship.

This means that if one of the couple dies the other will get that person's share. When the couple takes title as tenants in common, the share of the individual who died goes in accordance with the provisions of his/her will.

“With the added responsibility of home ownership and parenting, a Will is something that certainly should be considered as prudent.”

Once the differences between the two manners of taking title are explained to most people, they assume that if they take title as joint tenants, there is no reason for them to have a Will. Unfortunately, nothing could be further from the truth.
There are numerous reasons why a Will is something which prudent people should have. Individuals with young children have to contemplate what would happen in the event both parents died in terms of who would handle their estate on their behalf, but also who would be the guardian of their infant children.

If you Will are preparing a will and you have young children, it is a good idea to name an individual or individuals who will be the guardians of the children who are under the age of 18 at the time of death of the parent. Unfortunately, a provision in the Will naming a guardian in Ontario is only binding by law for a period of 90 days following the death of the parents. After the 90-day period has expired, it is necessary for the Court to confirm the person named as guardian.

If a dispute arises as to who should be the guardian of the infant children, the fact that you have named an individual in your Will to be a guardian is most often very persuasive.

When you own a home, in the long run your net worth usually increases because a portion of your mortgage payment goes toward reducing the principal amount owing and in the long run, real estate tends to appreciate in value.

If you have young children and you do not have a Will, the Court will, shortly following your death, appoint an administrator to handle your estate, who will be obligated to pay any share which would go to your children to the accountant of the Supreme Court of Ontario, who will hold that money until the child reaches the age of 18 years.

If you have a Will, you have the luxury of creating trusts and making arrangements to ensure that the equity you have built up in your home is left to your children (should you so desire) in a manner which meets your approval.
Arrangements can be made for payment of private school fees, etc., with distribution at ages 21 and 25 or later, as you see fit.

Clearly, a visit to your lawyer to discuss your home purchase is a good opportunity to sit down and discuss the needs of your estate and the terms of your will.