Petley-Jones & Co Law Corporation

Ralph Petley-Jones

Nanaimo Lawyer

Ralph Petley-Jones  B.Comm.  LLB
5732 Hammond Bay Road, Nanaimo
British Columbia, Canada V9T 5N2
250 758.7370
fax 250 758.8703
 

IF YOU ARE A SURVIVING SPOUSE

Most couples have most of their property (assets of any kind) in the names of both spouses, so that upon the death of one, property will transfer to the other. Usually transfers can be made to a surviving spouse without payment of taxes or land transfer fees. Examples of this are transfers of RRSPs and transfers of jointly held property in the Land Title Office.

Through legislation the definition of "spouse" includes common-law and same-sex spouses, but you should check that for your specific situation, if it is not "traditional," just to be sure. Under many British Columbia laws relating to estate matters, couples are considered spouses of a common-law relationship after two years living together in a "marriage-like" relationship. Under Federal legislation, it is usually one year.

Bank Accounts

Most joint bank accounts can be transferred to the surviving spouse by presenting a certified copy of a death certificate to the financial institution. Original death certificates from the provincial government (usually an agent thereof) are relatively expensive; you can obtain a number of certified true copies from a lawyer or notary at a lower cost. A financial institution may also make its own copy of the original death certificate.

Real Estate

In order to transfer real estate, application is made to the Land Title Office. Along with the application, an original death certificate needs to be sent to the Land Title Office. The Land Title Office will make a copy and send back the original death certificate if you request it.

Pensions

Surviving spouses often have rights under either private or public pension schemes. The most common public scheme in Canada is the Canada Pension Plan, which provides a spousal benefit if the deceased spouse was a contributor. There might also be a death benefit and child benefit available.

Life Insurance

You should apply for life insurance immediately upon the death of your spouse. This will usually require a certified copy of the death certificate, an application, perhaps a doctor's report, as well as any other information required by the life insurance company.

Other Recommendations for Surviving Spouses

Surviving spouses should also review their own estate plans to ensure that they are still current. Obvious areas of review are the choice of executors and alternates; beneficiaries and distribution of assets; and confirmation that powers of attorney for property are in place as are health care representation agreements. It is common for spouses to have powers of attorney only for each other, so someone else will have to be appointed an attorney. Likewise, health care representation agreements become more important, because in the absence of a health care representation agreement, all children have an equal say in a surviving parent's health care decisions if the parent becomes incapable.

It will be necessary to update beneficiaries of insurance policies, RRSPs, and perhaps pension benefits. One must be careful, however, in changing RRSP beneficiaries. Upon the death of the surviving spouse the RRSP will be collapsed and the amount of the RRSP will be added into his or her income at the date of death. The estate will pay the tax on this income. This means that a designated beneficiary of an RRSP receives all the cash from the RRSP but the estate pays the tax. This could be inequitable.

Finally, medical insurance requirements through public and private plans should be reviewed.

Proper estate planning between spouses will minimize the cost and paperwork of property transfers upon the death of the first spouse and will hopefully alleviate the need to obtain probate. Although it is a difficult time for the surviving spouse, using appropriate legal, tax, and investment advice will make the transition as smooth as possible.

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