Your Will Isn't the Whole Picture: The Importance of Reviewing Asset Ownership
When most people think about estate planning, they usually think about their Will, and possibly Powers of Attorney. But while a well-drafted Will is essential, it’s only part of the story. Some of your most valuable assets, such as your home or a joint bank account, may not pass through your Will at all. A recent Ontario court decision shows just how much can turn on that distinction.
A Case in Point
In the recent case of Giglione v. Giglione, a father’s Will left the bulk of his estate to be divided among his children, with a smaller share to his wife. On paper, that sounds straightforward - but the matrimonial home he shared with his wife was held in joint tenancy. That meant that, regardless of what the Will said, ownership of the home passed automatically to his wife when he died, by right of survivorship.
One of his children went to court arguing that the home should really have formed part of the estate, pointing to the fact that his father had paid most of the costs associated with it. The court disagreed. Under Ontario’s Family Law Act, property held jointly by spouses is presumed to be intended as a joint asset, regardless of who paid for it. Nothing in the circumstances of this case rebutted that presumption. The home therefore passed to the surviving spouse, outside the estate and outside the Will entirely. The court also noted that the couple’s joint bank account would likely be treated the same way.
Once the jointly held home and accounts were set aside, what was actually left to pass through the Will was modest. The estate was estimated at less than $75,000, and possibly only $25,000. It’s a striking illustration of how much of a person’s wealth can sit outside their Will entirely, even when the Will itself looks like it’s directing the bulk of the estate.
The Principle Behind the Case
This is where a lot of people are surprised: how an asset is titled often determines where it goes, not your Will. A Will only controls assets that flow through the estate. Several common assets bypass it entirely, including:
Joint bank accounts held with a spouse typically pass to the surviving spouse
Real estate held in joint tenancy passes automatically to the surviving owner by right of survivorship
Life insurance policies and registered accounts (RRSPs, TFSAs, etc.) with a named beneficiary are paid directly to that beneficiary
None of this is a problem on its own. In fact, many couples set things up this way deliberately, so a surviving spouse has quick, uncomplicated access to shared assets without waiting for probate. The trouble starts when the way an asset is held no longer matches what was actually intended, and nobody has checked.
When the Two Fall Out of Step
It’s easy for your Will and your asset ownership to quietly drift apart over time. A few situations where it’s especially worth taking a closer look:
You’ve blended families through remarriage and want certain assets to reach children from a prior relationship
You added a child’s name to an account or property title for convenience, without thinking through what that means for ownership
Your circumstances have changed since an account or property was set up (e.g. a separation, a new relationship, a business, or simply the passage of time)
You want your Will to treat your children equally, but some assets are jointly held with only one of them
If any of these sound familiar, it doesn’t mean something has gone wrong. But it does mean it’s a good moment to check that your plan still reflects your intentions.
A Simple Step That Prevents a Lot of Confusion
Reviewing how your assets are held doesn’t need to be complicated. It usually just means going through your accounts, your property, and your beneficiary designations, and asking a simple question for each one: if something happened to me tomorrow, would this go where I actually want it to go?
Where the answer is unclear, or doesn’t match your Will, that’s worth sorting out now, rather than leaving your family to untangle it later.
At O’Hare Law, a review of how your assets are held is part of every estate planning meeting, so nothing gets missed and your Will and ownership structures actually work together. If it’s been a while since you looked at yours, book a free consultation using the link below, and we’ll go through it together.
This blog post is for informational purposes only and is not intended to provide legal advice. If you require legal assistance, before taking any action you should contact us or another qualified lawyer to discuss your situation.
