Today’s blog was written by Courtney Lanthier, Law Clerk at Fasken LLP

With the summer months now here, we enter into another cottage season – a time for family and friends to gather, make new memories and relax and unwind.

For many, cottages hold significant sentimental value. They are a place to spend time with loved ones and to watch children, and even grandchildren, grow up. But before jumping into buying one of these sought-after properties, it is important to consider how it will be dealt with for future generations.

When a property like a cottage has such an important meaning behind it, we as practitioners should strive to ensure that it is properly dealt with in a client’s estate plan. As a starting point, consider the inclusion of a specific provision in the Will that clearly sets out how the property is to be dealt with on death. Such provisions have the potential to be quite cumbersome, so consideration of potential issues and thoughtful thinking should definitely be at the forefront when drafting. A few points to consider when speaking to and advising clients are as follows:

• Who owns the property and how it is held –by spouses jointly, or only one of them? By siblings jointly or as tenants-in-common? A quick property search can determine this information.
• Should the property be transferred to any surviving children? After the death of the surviving spouse, this may be the logical next step, so it is important to clearly set out what would happen in this situation, such as:
  • is the property to be transferred to all surviving children jointly, or as tenants-in-common?
  • if only one child wants the property, but that child’s siblings do not, how will it be equalized among all of them?
  • should an interest a child receives in the property be set-off against that child’s share of the estate? If so, how is the value of the property to be determined?
• Transfers of property can often take longer than anticipated, so how will expenses and general upkeep of the property be dealt with? Should a specific amount be set aside from the estate to cover such costs?
• If multiple children are receiving an interest in the property, should they consider entering into a co-tenancy agreement?
• If children cannot decide amongst themselves how to split ownership of the property, how should that be handled? Should each child be allowed to put forth a proposal to purchase the property, with the trustees ultimately having the final decision?
• Will the property be sold to a third party? How will the proceeds be distributed?

As every clients’ situation is unique, there is no exact list of questions to ask.  However, in many cases, posing some of the more general questions set out above can fuel additional discussions and options for determining the best course of action when it comes to handling the cottage property. By asking more questions, encouraging more conversations and helping to clearly set out clients’ wishes, planning can be undertaken so that cottage properties can be enjoyed for generations to come.