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Tuesday, January 26, 2010

Get an experienced lawyer

This morning I met with a client whose father died two years ago but whose estate has not even been started. The client took his father's Will to a lawyer who doesn't practice Wills and Estates law - and told the client so - but the client wanted this lawyer to do the work because it was someone he knew personally. Why the lawyer agreed, I can't imagine.

The result is that two years later, the Will has not even been probated. The lawyer found a form that he sent to the client and asked him to fill in. The client didn't know how to fill it in properly and the lawyer was no help. Everything ground to a halt and there it stayed until today. There are four pieces of real estate, two of which generate rental income, still in the father's name. The estate is at least two tax returns behind schedule.

If your experience with an estate is anything like this, you should know that this isn't the way it's supposed to be. This is not at all how things go when you hire a lawyer with knowledge and expertise in estates. If that client had chosen a different lawyer, this all would have been over with and out of his hair a year ago or more. The lawyer should take control of the file, keep it moving and advise the client at every step of the transaction.

I always feel terrible for people when I hear stories like this. Don't put yourself in this position! Whether you need Will planning for yourself or probate of the Will of someone you cared about, hire someone with experience. If you don't know who to hire, ask your friends, family and co-workers for the name of an estate planning lawyer they have used. Don't hire someone who sets up companies or defends criminals or does divorces. Those are completely different law specialties that you may need at another time but you don't need for estate planning. If nobody you know can recommend someone, ask your banker or your accountant.

Tip: If you call a firm or lawyer you don't know, be smart about what questions you ask. Don't say "do you do Wills?" because even a lawyer who does only one Will a year will answer in the affirmative. Instead, ask "what percentage of your practice is Wills and Estates?" Look for someone who does a lot of work in this area of law.

I know there are some exceptions to this rule. I have met some general practitioner lawyers, particularly in smaller towns, who do several kinds of legal work and are also extremely good at Wills and Estates law. I've also met some who are terrible at it. I wish it were easier for the clients to know who to hire.

13 comments:

  1. Hi Lynn, my sister and I own a cottage. Deed reads husband and wife as joint tenants and tenants in common with other husband and wife. My sister hasn't contributed to the upkeep or repairs for the property in over 14 years. She is now threatening that if we don't buy her out she will sell her half. The title is not clear as the mortgage on title was held by someone who passed away without a will and no heirs. It is my understanding this now has to go through Superior Court in Toronto to get cleared up. Can my sister sell her half without the title being clear? Approximately how long do you think it would take to go through the courts and the approximate cost for a lawyer?

    ReplyDelete
    Replies
    1. Well, good luck to her in trying to sell half a house, especially when the title is so messed up she can't prove she owns anything. Tell this bully to take a hike.

      The length of time it will take to go through court will depend on several factors, including whether there is going to be a full trial or not. If you are proceeding through the probate courts, that would likely be faster and less expensive, but I don't know all the facts so I don't know if that's possible in this case.

      Lynne

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  2. So my dad passed away in joint tenants a couple months ago. My grandma passed away just after. N now there is a couple of my antys on it.
    I have lived there the last 25 years and about the same with my sister. My dad has lived there the last 50. Not one of my antes even live in the provence or have even stayed on the property in the last 30 years.
    They moved other people in to my grandmas house.
    But wont let me turn on the power to our house.
    I really have no right to live here any more?
    Is there anything i can do about this like put a lean on the property or land or even clam squatters rights?
    The resin i ask is my sister just had a baby and my gf is pregnant. N from what u said we basically have to pack all our stuff n suck it up?
    n the 100 combined years on it means nothing
    thats the law lol... canada sucks lol

    ReplyDelete
    Replies
    1. Canada didn't do this to you, my friend. Our property laws are actually pretty sensible and easy to work with. Blame it on the people who for some completely unknown reason put everyone and their dog on their title. There is no sane reason for all those people to be on the title. Now you're paying for someone else's unwillingness to even find out what the law is.

      Lynne

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  3. Hello
    I'm the only one on the title/deed of my house and lived in it for 10 years before re-marrying and now have been with my 2nd husband for 11 years. Does he, in effect, own 1/2 of it even though he's not on the title?
    Thank you

    ReplyDelete
  4. Hello, I own my own home & rent the upstairs to someone. This person, may try to pretend to me in a personal relationship in order to apply for a 'common-law' spouse, lien on my house one day. (I do not trust him/her) Also, since I rented to a new roomer, another room,,,,this person is saying 'we used to have a good relationship, before this 'other' person came along. (but the relationship has been only professional). I think the person I rented the upstairs to, is a 'con' person. If I put the house in my and my son's name as 'joint' tenants, will that protect me from a 'lying' person who may be trying to get 'half' my house on false premises?

    ReplyDelete
    Replies
    1. This really is not an estate planning question. It sounds like you have an interesting household, that's for sure. I recommend that you find a lawyer who deals in real estate, not estate planning, and talk through your issues with him or her.

      Lynne

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  5. Hi Lynne,
    My Wife and I were married for 49 years.
    She recently passed away and the house is jointly in both our names (we always

    were joint owners. Just us, no others).
    In her will she left everything to me.
    I was told that I must have her name removed from the house title.
    I phoned the land title department of the city hall and they say that they don't

    have any forms any more and I must have a lawyer to do this.
    It is as straight forward as it can be. Nothing complicated. I don't see why I

    need a lawyer when I am quite capable of filling in a few forms.
    Can you please tell me where I can get the necessary forms (and which forms I

    need) for Ontario and who I can send them to, once completed.
    Sorry if this is in the wrong thread.
    Thank You.

    ReplyDelete
    Replies
    1. Here is a link to the form I believe you need: https://d2khazk8e83rdv.cloudfront.net/survivorship_application_under_section_123_of_the_land_titles_act.pdf

      I know the links don't work well on this site, so you might have to cut and paste into your browser. This form and the others you might need are at www.ontario.ca under "home and community" and then under "land registration forms". Have a look and see if the forms seem manageable.

      Lynne

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  6. If a property is registered as a Joint Tenancy and on of the people decides to sever that arrangement then I am assuming the title reverts to Tenants in Common and either can will his or her portion but what is the property division, does it remain 50/50 or can they add new name to the title without the other original Joint Tenant's consent thus dividing the property share even more? The more I read on joint tenant deeds the more I understand it's only to avoid probate court and basically isn't binding if one of the parties decides they want to muddle the original agreement.

    ReplyDelete
    Replies
    1. If the title is severed and each owner has 50%, the the owner of one half can only deal with his half. For example, he can add his spouse to his share so that each of them own 25%, but the other person who had 50% will still have 50%.

      I've said it a thousand times and I'll say it again - setting up joint tenancy agreements to avoid probate fails almost 100% of the time for a million reasons. Why ANYONE still does this to their families, I don't know.

      Lynne

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    2. OK I think I have it, the original Joint Tenancy deed drawn up approx 10 years ago had 3 names one of the original people named on the deed has passed away so I am assuming that means an automatic 50/50 split share for the survivors named on the deed, am I correct in this assumption or am I missing something?

      Delete
  7. I live in Nova Scotia, there is a long story attached to this but I will try and be brief, 2000 mother diagnosed with Alzheimer's, kids all married except me, I came home shortly after she was diagnosed to help out for a while the plan was to stay for a year or 2 help out with upkeep, renovations and bills and
    Dad was to sell home parents to move into assisted living care facility but didn't work out that way (turned into 15 years and had to quit work several years ago because her condition needed 24 hour care, she passed recently), other siblings did nothing not even visit unless they wanted something, Father refinanced sometime during the last 15 years with line of credit against house and without telling me he put the house into a Joint Tenancy with Mom, myself and Dad on deed, since she has passed I understand the survivor rule but now he is in a nursing home (he is in his late 80's), the house in question is being sold to pay for my fathers accommodations and give me a new start, unfortunately other family members are now attempting to manipulate his finances and shut me out (basically now they want to be good kids and get their share), there are several accounts and investments involved but I really don't care about since I have not contributed to any of them and really don't care about inheritance in that way, my concern is the division of the proceeds of the house that I sank every last penny I had and did all the renovations and property upgrades and care to, if they get him to sever the Joint Tenancy (which apparently is quite easy to do) how would the title evolve and what would the division of the money be upon sale, would I still get 50% after his line of credit and other associated fees are paid or can they totally remove me or even add additional names to the deed as Tenants In Common, I am only asking as I have exhausted all my savings have no income and basically have nothing more than I did at 19 when I first started working, I am now 56 a tad late in life to be in this financial position, just need some info so I can put this to rest in my mind.

    Best Regards
    Anonymous

    ReplyDelete

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