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Tuesday, July 25, 2017

Why would someone choose not to tell the beneficiaries who they've appointed as executor?

Have you told your family who you have named as the executor of your will? Have you thought about whether there is a downside to having that information out there? A reader recently sent in a question asking about this situation, and I've shared it with you here:

"Can someone still living, who has a will and selected an executor, divulge the executor's identity ahead of time? (i.e. Ahead of his or her demise?) What might be a reason why the individual would not agree to state to a beneficiary the executor's identity ahead of time?"

A person who has a will, known as a testator, can divulge as much or as little as he or she wants to divulge about private legal matters. Certainly a testator can choose to tell people who has been named as the executor of his or her will, if he or she so wishes, but nobody has the right to be informed.

What might be a reason why a testator would not want to state the identity of the executor? I can think of a couple of really good reasons.

In my view, a person who is named as an executor should always know about the appointment. I urge my clients to talk to their choice of executor to sound them out about taking on the job. I do this because if your executor doesn't know about the appointment, he or she won't realize the need to step up and take charge of matters after you pass away. There is also the chance that he or she will refuse to take on the role. If that's the case, you might end up with no executor. However, I don't see the need to tell the beneficiaries ahead of time who has been named as executor.

Unfortunately, sometimes when a testator makes it known in the family that one person is the named executor, it leads to a mistaken belief on the part of the executor that the executor has some kind of power over the testator. Often the mistake made is that the executor thinks he or she has authority while the parent is still alive, as if he or she was named under a Power of Attorney. I recently had a case in which the executor of a person who is still alive put more than $600,000 of the testator's money in his own name on the basis of the fact that he is the executor. That's completely unlawful of course, but it happened. Other people in the family support this kind of action or simply go along with it because they, too, mistakenly think the job of executor must convey some rights while the testator is still alive.

So perhaps when the testator doesn't want to divulge the name of the executor now, it's because he or she doesn't want someone to start interfering with how the testator is managing financial matters. I've met many parents over the years who are reluctant to sign documents such as wills and Enduring Powers of Attorney because they fear that they are giving their children a license to butt into what the parents are doing. They don't want unsolicited advice and they certainly don't want someone taking away their independence and autonomy.

A testator might also want to keep that information close to the chest because he or she wants to reserve the right to make changes to his or her will in the future without having someone in the family object or complain or question his or her choices. Families really can be very officious and interfering sometimes, even though often such meddling comes from a place of genuine affection.

A common situation that illustrates my point is one in which it has been known for years that Child A is the executor, but one day the parent changes his or her will and appoints Child B. The reaction from Child A (and sometimes other people) is that Child B must have pressured or influenced the parent to make the change. And so begins the suspicion and speculation that turn into a lawsuit after the parent has passed away.

Another reason may just be privacy in general. It really isn't anyone else's business who has been appointed as executor.




Thursday, July 20, 2017

The Law Show: Common mistakes in home-made estate planning

Today's episode of The Law Show is now online and available for listening. This time (July 21, 2017), we talked about mistakes that people make when doing their own estate planning and their own wills. Bet you'd find it enlightening! Click here and scroll down to the episode you want (the latest episodes are on the top of the list). If you want to see which topics were covered on which dates, check our list on the right  hand side of this blog.

Tuesday, July 18, 2017

Finding and working with a lawyer: The Law Show new episode is now online

Our most recent episode (July 13, 2017) of the Law Show is online and ready for listening. This time we talked about lawyers - where to find one, what to look for, how to keep costs low, what to do if your bill is too high, and much more. Click here to listen to this and other episodes. If you want to know which topics were talked about on which dates, refer to the list down the right-hand side of this blog.

Monday, July 17, 2017

An heir's guide to furniture, china, glassware, art and more

Executors who are preparing estate inventories often find household items the hardest to valuate. This is especially true of collections of items such as china, silver, books, coins, or stamps that you know the deceased spent thousands of dollars to purchase. My clients have told me time and again that household items that they expected would be valuable turn out to have no value or very little.

This is often a tough situation for executors and family members because there is a sentimental value to some items. The wedding china that your Mom picked out so carefully and lovingly 60 years ago may seem as if it should be priceless, but to the rest of the world, it's not.

I've found a good article at www.nextavenue.org that talks about how to place a value on some of the items our parents collected and that we are now dealing with in their estates. The article gets pretty specific about individual manufacturers' names and useful websites, so it's definitely worth a look. Click here to see the article.

By the way, this site has other good articles on similar topics that executors and beneficiaries alike might find useful.

If I could add one tip that applies to my fellow Newfoundlanders and Labradorians in dealing with estate collections, it would be to check with the Centre for Newfoundland Studies at Memorial University. They might be interested in books, pamphlets, photographs, slides, magazines, videos, catalogs, souvenir programs, menus from old restaurants, posters, maps, dairies, or correspondence, as long as those items have something to add to the history of our province. You won't get money for them, but they'll have found a home.

Tuesday, July 11, 2017

Predatory marriages "increasingly common problem" in Ontario

I have recently read an interesting article by Toronto lawyers Ian Hull and Suzana Popovic-Montag in which they discuss predatory marriages.  Click here to read it. Apparently some crooks have figured out that it's easier to marry an elderly person to get access to their estate than it is to persuade them to make a new will in their favour. This is now apparently an activity that is increasing.

In most Canadian provinces, a will that is in place is revoked when the person whose will it is gets married. Therefore even if the new predatory spouse doesn't persuade his or her new spouse to make a new will, they will still come out on top. All provinces give a preferential share of an estate to the spouse of the deceased when someone dies without a will. And if the deceased had no children, the spouse gets everything.

I can't really see an answer to this issue. I'm sure any governmental attempt to control who can marry whom would amount to a grievous infringement of personal freedom. This leaves it up to the family to try to look after a vulnerable senior, but I expect that would have limited success. For one thing, we all know what  it's like to try to talk someone out of something they have decided to do. That's assuming you even know about it in time; anyone can marry quickly and quietly without telling their relatives in advance. And of course, there are plenty of vulnerable seniors who don't have anyone around to protect them.

This seems like a crime whose time has come.


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