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Thursday, May 25, 2017

New episode of The Law Show now online - and we've answered a ton of your questions!

The latest episode of The Law Show is now online and available for listening on www.vocm.com (and yes, it's free). This week we answered a long list of questions sent in to us at our email at thelawshowNL@gmail.com, or here on this blog. We covered many interesting topics from family dynamics to getting a copy of the will to calling the police about out-of-control family members. Click here to listen in and scroll down to the episode you want to hear. If you don't know which episode to click on, look to the right hand side of this blog for the topic listing.

Wednesday, May 24, 2017

You can't use your parents' bank accounts after they die. You just can't.

As thousands of Canadians are finding out each year, they cannot gain access to their parents' assets after the parents' death just because the parent allowed them access while they were alive. Parents need to make wills putting someone in charge and allowing someone access. A reader recently wrote to me sounding somewhat put out because the bank would not let her continue to pay bills after her mother died. Read on to see her note and my comments.

"My mother died without a will. There is no estate to speak of, just the money in her bank account (less than $3,000). I was handling things for her for seven years while she was in a nursing home. I find I am now blocked from using her account. I paid all the bills through her account (she had pension, CPP, and OAS) and now I'm blocked. I paid the final expenses from my own account since it seemed easier. How can I get reimbursed for the expenses from her account?"

Of course you cannot use her account. You are not her. It's not your money to use. People are always extremely surprised to find that places such as banks and land registries won't just let them take their parents' assets. Why would this surprise you? Your parents do not cease to be individuals with legal rights just because they have aged.

The fact that you helped her with her banking for years is great. Obviously she had someone she trusted to lean on when she needed help. However, that does not create any legal right for you to use her money after she has passed away. As you said, there is no will. That means that she has not appointed you as her executor. The bank has no legal authority to allow you access to her money.

If you had not already paid the funeral bill, I would suggest that you give the invoice to the bank and ask them to pay it from your mother's account. This is acceptable at pretty much every bank, assuming there is enough money in the account. However, you've already paid the bill yourself and the bank is not going to give you money directly for the reasons outlined above.

So let's look at the next option.

If the amount of money in the account was large, I would suggest that you or one of your siblings apply to the court to become the administrator of your mother's estate. However, given the size of the account, the cost of obtaining Letters of Administration would eat up the whole account. The banks have a process available for this type of situation.

If the bank account is the only asset your mother owned, the bank will not insist on probate (unless there is a dispute between siblings or something like that). All of you who are entitled to your mother's estate according to intestacy law in your province can sign an indemnity agreement at the bank. This is a form provided by the bank without you paying legal fees for it. It would need the signature of all beneficiaries and all would agree in writing to indemnify the bank from any future claims against the estate.

Because you had been handling your mother's finances for years, you would be a in a good position to determine whether she had any creditors who are likely to come forward, or whether there is an unpaid tax bill, or other financial trap waiting to spring.

Hopefully all of you can agree that the funds in the account would be used to pay final expenses first, and that would allow you to reimburse yourself from her account. If you disagree, there is nobody legally in charge of the estate to make the decision or settle the dispute.

You will have to realize that although this procedure will allow you to reach the short-term goal of reimbursing yourself, it will not give you the legal status of an executor or an administrator. The bank can get you to sign forms that allows you access to the assets over which they have control, but they can't do anything to help you with estate matters outside the bank. You may still have problems dealing with pensions or tax returns or other situations.

Tuesday, May 23, 2017

Court challenge over elderly man's will may be a sign of things to come

There is a very sad, upsetting case being heard in the Ontario court. It is about the will of Christos Vloyiannitis, who died in 2013 at the age of 78. Before Mr. Vloyiannitis died, he changed his will to make his caregivers, a married couple named Terry and Pam Cross, his major beneficiaries. He also made them his powers of attorney for both personal care and financial matters.

The day before Mr. Vloyiannitis died, he was admitted to hospital in very bad shape, with issues including malnutrition and untreated sores.

Mr. Vloyiannitis's sister is contesting the will. She alleges that the caregivers took advantage of an old, sick man who was grieving the death of his wife and was dependent on pain meds including morphine. She says they isolated him from family and were spending about $13,000 a month of his money.

Click here to read a story from the National Post that gives more details about the case.

The angle taken in the story is that this type of will challenge is going to become more common in the near future as our population ages. I agree. Not everyone has family members who are willing and able to provide the care that is needed. More and more of us will be dependent on paid caregivers. This means that more of us will be vulnerable to the dishonest ones among them.

Will challenges are based on the idea that the testator was unduly influenced by a greedy or unscrupulous person or did not have the mental capacity to understand what was happening. These cases are already pretty common. In fact, I have one in front of the Newfoundland courts right now. Here's how it works: when most wills are admitted to the probate court, they go through on a simplified, informal process. If there is a reason to suspect that there is something wrong with the will (known as "suspicious circumstances), a family member or other person can request that the court take a closer look. If the court agrees that there are suspicious circumstances, it would then go through a process whereby the circumstances of the will would be examined in detail.

This type of litigation is lengthy (think years, not months), expensive and really unpleasant. There are accusations flying around and every possible bit of dirt is brought up. This is because the court digs deep to see what happened leading up to the signing of the will.

All of us who have seniors in our lives should do our best to keep an eye on them. Sometimes older people feel very lonely and are easily convinced by opportunistic people that nobody in their family cares about them. Isolation is dangerous.

Friday, May 19, 2017

Why I don't always answer your questions

Every now and then I see a post on this blog that points out - perhaps impatiently - that I have not yet answered a specific question left for me. On occasion this prompts me to answer the question because I had genuinely not seen it in the incoming flow of words. Most of the time though, if I haven't answered a particular question, I have no intention of doing so.

Why would I not answer a reader's question, you might ask. There are lots of reasons, many of them relating to lack of time. Here are some of them:

1. There are dozens of questions and comments each day and some days I'm jam-packed with appointments with clients or I'm in court. Many of the questions get past me just because they come in on a busy day or because a day or two (or three) are seen at the same time.

2. The question is unclear because too few facts are presented. I used to answer these by discussing what happens in one case vs what happens in another based on different facts, but I just don't have enough hours in the day anymore to guess what people really mean to ask.

3. The question is unreasonably lengthy. All of the information presented in the question is important so it's not that the person cannot get to the point; some things are just complicated and take a while to explain.  If it takes you half an hour or more to type your question, it probably needs personal attention from a lawyer in a proper interview setting, not just a quick blog post answer. In a complex situation, you need to discuss your options, not just be told a quick answer.

4. It's a follow-up question. I cannot hold dialogues with people about specific cases here on my blog, for my sake and for theirs. This blog is designed to give ideas and snippets of information (NOT advice) based on the general rules that apply. Getting into a conversation tends to make people think they've had proper legal advice, even though they haven't. It gives people a false sense of security. And it puts me in danger professionally for letting people think they're fully advised when they're not. I know that sometimes people think I'm rude for abandoning the conversation but it is done for good reason.

5. It's a question that would require me to do legal research in order to answer properly. I charge for doing research and writing legal opinions.

6. The question isn't about anything estate-related. I often get questions about family law or real estate law. This blog is only for matters relating to wills and estates.

7. And the MAIN REASON for not answering a question is that readers still post them on the threads that have the warning in red text that the thread is full. I can see the first line of the question on those, but that's it, so of course they don't get an answer.

Having said all of that, I do not mean to discourage questions. In fact, I hope this post will help readers frame their questions so that I can answer more of them in the time I have. It's important to me to know what kinds of concerns and questions people have, as you readers are my conduit to the online public. Your questions and comments and searches let me know what information people are really looking for to help them with estates they are involved with. You let me know what to write about and talk about so that I'm posting information that is useful and timely. Your questions give rise to my new blog posts and the topics I talk about on The Law Show.








Thursday, May 18, 2017

The Law Show's latest episode talks about enduring powers of attorney

The latest episode of our radio show, The Law Show, is available for listening online. Click here to listen to this and all episodes at www.vocm.com. You'll see all of the shows listed by date. If you want to know which topics were covered on which dates, take a look at the list on the right hand side of this blog.

The latest one is about Enduring Powers of Attorney. We were able to cover a lot of information in this show, which I think is one of our most informative so far. If you're interested in hearing about ways to protect yourself or your parents from abuse by POA, take a listen.

Thanks to all who are listening to the show. We are so grateful for all of the positive comments we've received.

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