When the parent who has made a loan passes away, there is a question about whether or not the parent intended for the loan to be repaid. Often the child understands (or hopes, perhaps) that the money was a gift and the parent intended to forgive the loan all along.
But what happens if the parent makes a Will in which he or states that all of the children are to inherit equal shares? Does this mean that one child has received more than his or her share? And what if the parent died without making a Will at all? How should the loan be dealt with?
Let's look first at what happens if there is a Will. A parent can state in the Will whether or not he or she wants the loan to be forgiven. If the parent says in the Will that the children are to get equal shares of the estate but loans are to be forgiven, then the equal shares are calculated as if that loan had never been made.
If the parent says in the Will that the loan is not to be forgiven, then the child who received the money will receive less from the estate. It is rare that it actually involves the child repaying the loan. Unless the loan was larger than the share the child will inherit under the estate, it's simply a matter of subtracting the loan amount from the share. For example, if Sam was supposed to inherit $50,000 but had received a loan of $10,000 from his mother, and the mother's Will said the loan is not to be forgiven, then Sam will inherit only $40,000. This process is called set-off.
If a parent leaves a Will but doesn't say anything about loans to children, the executor must follow the general duty of collecting all debts owed to the deceased and his or her estate. This includes loans to children, so the child would have to repay it (or there would be set-off). This can be a real mess at times, for a couple of reasons. One is that if there is no documentation, the executor will have to prove the allegation that there was in fact money changing hands. This causes delays and usually friction between people as well. Another is determining the amount first loaned, and any amount repaid. The executor can't always count on co-operation from the child, for obvious reasons.
Now let's look at what happens if there is no Will and the parent has made a loan to a child. The Intestate Succession Act specifically states that in this case, any money given to a child is deemed by law to be a loan and not a gift. This would mean repayment or set-off. The same problems exist for establishing the amounts.
If you are a parent who has made a loan to one or more of your children, check your Will to see whether you've addressed the issue of repayment of loans. If not, do your children and your executor a big favour and deal with it so that nobody has to guess or litigate to figure out what you intended.
If i die before my parents,does everything they will to me go to my children.
ReplyDeleteHi there,
ReplyDeleteTo know the answer to this, you would have to read the Will itself. Your parents can choose in their Will whether they want your share to go to your children or to someone else, should you predecease them. By far the most common scanario in Wills is for the share of a deceased child (e.g. you) to be passed down to the children of the deceased child, but it is not required by law. The next most common scenario would be for your brothers and sisters to divvy up your share should you pass away before your parents.
Because you mentioned a Will, I'm assuming that you know for sure that there is one. This makes a difference too, because if there is no Will, the estate will be distributed according to the intestacy laws of wherever you live. In most places, the share of a deceased child is passed down to the children.
I blogged about this recently. Read the post here:
http://estatelawcanada.blogspot.com/2010/07/does-intestacy-work-differently-in.html
My mother has a will that provides that, upon her death, the inheritance is split 50-50 between my brother and me. That is how the rules have been understood for a long time. Recently, my brother and I were having a discussion and he subtly suggested that some of the inheritance should go to his children and his grandchildren (my mom's grandchildren and great grandchildren). I don't have a problem with that except it should be funded by reducing my brother's inheritance. What is your experience with the common practices in the treatment of grandchildren/great grandchildren?
ReplyDeleteAlso, I am not sure that I agree with the position that a sibling's children should inherit the deceased sibling's share of a parent's inheritance. I believe 100% of the inheritance should be shared between the surviving children (not grandchildren). Parental inheritance should be reserved for the children and share in precise equality. If I want y children to have a share of my parent's wealth, I will give it to them (when and under the conditions that are of my choosing). My children will have THEIR turn to inherit MY wealth (from THEIR parents) when I die.
You and your brother certainly represent differing points of view on this. I would say that your approach is the more common, based on the families I've met over the years. At the end of the day, your Mom is the one who has to decide who she wants to give her estate to, regardless of what her kids think.
ReplyDeleteI wonder whether your brother has a reason for wanting the money to go straight to his children. It can't be for tax reasons, as the inheritance isn't taxable. But there could be other things he doesn't want to divulge, such as problems with creditors.
If your Mom gives the estate to you two kids, then you are of course free to do as you wish with it. If your brother wants to share with his kids, he can do that. If you don't want to, you don't have to.
Lynne
Upon my mother's death. One of our siblings who is not the executor has demanded that who ever owes mother money must be paid to the estate. Some of the siblings have stated that mother did provide them with a loan and they will repay. But one other sibling stated that mother did indeed give them a gift for a home and repayment was not required. There is a will but only the 2 loans to the siblings are required to repay to the estate not the money of gift to the other sibling. Nothing was documentumated for the gift but there is some cheques where mother hand printed the sibling first name on the reciept. All the other siblings do not have an issue with the money given as a gift with the exception of one sibling. What is legal here and can the sibling who was given the gift be made to repay eventhough that was not the intent by mother.
ReplyDelete