Wednesday, May 26, 2010

Does every Will have to be probated?


This is one of those questions that I am asked over and over again, so I thought I'd mention it here. The short answer to the question is "no", but that doesn't tell the whole story.

Probate is not needed to transfer certain kinds of assets. Specifically, you do not need probate to transfer property that is held in joint names. This is because joint ownership carries with it a right of survivorship of the other owner(s). For example, if a husband and wife own their home jointly and the wife passes away, the husband owns the house by right of survivorship and doesn't need probate to put the title in his name alone. Take note that this rule does not necessarily apply to assets that were jointly owned by the deceased and his or her children.

You also do not need probate to transfer assets that have a named beneficiary. These assets include RRSPs, RRIFs, life insurance policies, pensions and some other assets. When the owner of the asset passes away, you only need to provide a Death Certificate and some information in order to transfer that asset to the person who is named.

Because of these rules, it's quite possible, and in fact is the norm, that a husband and wife can set up their financial affairs using joint property and beneficiary designations so that when one of them dies, the other one does not need to go through probate.

For anyone who is not in that situation, and whose assets are not all going to pass to someone automatically due to joint tenancy or beneficiary designation, the question of whether probate is needed is going to depend at least partly on the type of asset they own.

If you own real estate in your own name alone, or if you own it as a tenant-in-common, your executor will need a Grant of Probate to transfer or sell your property.

If you have assets that will form part of your estate after you die, such as life insurance policies and RRSPs that name your estate as beneficiary, your Executor will need to get probate. This also applies to any assets held in your name alone, such as a bank account, investment, or expensive personal items (e.g. art collection).

If you have a significant amount of money in your estate, your Executor will need probate before he or she can gain access to it.

There are other, less common, reasons why executors must go through probate. For example, the executor might have to finish litigating a lawsuit on behalf of the deceased. There could be a dependent who wants to make a claim against the estate. There could be some question about whether the Will itself is valid or some of its terms might need to be clarified.

It's sometimes hard to tell right at the beginning of an estate whether or not you need to go through the probate process. Sometimes the only way to know for sure is to take the Will to an experienced lawyer, together with information about the deceased person and his or her assets, and ask for an opinion.

201 comments:

  1. It would seem to me that naming a person as a beneficiary instead of an estate would be the easiest and fastest route for distribution. Is there some benefit that I can't see to naming an "estate" as a beneficiary.

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    1. I've replied to this question by creating a new blog post on Feb 29, 2012.

      Lynne

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    2. I am the widow of my late husband,we have two children one from a previous engagement and the other natural,we are currently living in our home we purchase together but the house was in only my late husband name it's almost one year since he passed away how long does probate take? we had no will?

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    3. Since your husband had no will, there can't be probate. Someone has to apply to the court to be appointed as administrator of his estate. By law, you are the person with the right to do this, and nobody else should be able to do this unless you say in writing that you aren't going to do it.

      If none of that has happened, then nothing is happening on his estate. If you want things to wind up, you are going to have to take steps. If you really feel that you can't do it on your own (and you certainly wouldn't be the first person who felt that way), then I recommend that you approach a trust company or a lawyer and ask for help.

      If the house is in his name, it's going to stay in his name until you take steps to change it.

      Lynne

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  2. I am named in the will does that matter. (Dad has passed already)

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  3. That's a pretty wide open question. Does it matter in what way? I'm trying to interpret the question in the context of my original post, which was about not all wills having to be probated. So the closest I can get is that you're asking whether a will still needs to be probated when someone is named. I still can't answer the question though because I don't know whether you mean named as executor or named as beneficiary. Could you be more specific about how you are named, and what you mean by "does it matter"?

    Lynne

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    1. I am not the original post person of this question, however I am interested in the answer. I am executor for my Dad's will (Mom passed years ago). Most things had a beneficiary or joint designation, however not all. With the exception of a small amount of money to my adult son, the remainder goes to me as beneficiary of the estate. I have no siblings. There is a house in his name solely and about $100,000 personal investments that he had not got around to making joint. Do I need probate? Some of the investment companies are saying the amounts are low enough that they don't need it. I thought anything not named as a beneficiary or joint survivorship automatically had to be included in the calculation of the assets for probate - and that the will had to be probated. I'm confused. Thanks for your help.

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  4. I have been named the executor on my grandmother's will. She did not have it done up by a lawyer but had it witnessed by a Commissioner of Oaths at one of the hospitals she was at when she was ill. She did not have very much (just her main account at the bank) and left me clear instructions on how much to give each beneficiary. I will be paying out all her funeral expenses on my credit card. I will be paying out any outstanding bills and filling out all the required government forms. My first question would be, in this scenario, if it would be best to go through probate or not. My second question is about advertising for creditors (I would assume that this should be something done; although she never owed anyone except the extended care facility and her phone bill). I just want to make sure I'm doing everything right. Thank you.

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  5. Hi there,

    Glad to see you're being careful to do it all right; that's not so easy is it?

    You don't have to pay the funeral expenses on your credit card. You can submit the invoice to the bank where your aunt has her account, and they will pay it, with or without probate.

    From what you've said in your post, I don't see why you would need probate, unless the bank that holds the account insists on it. Ask them directly. There are other reasons for probating, as you no doubt read in my post, but you haven't said that any of those circumstances exist in your case.

    As for advertising for creditors and claimaints, there is no requirement for an executor to do that. It's something that an executor does to limit any liability that might arise if a creditor showed up after all of the estate assets had been disbursed. Each and every executor has to weight the costs of the advertisement against the risk of such a creditor existing. From what you've said here, there shouldn't be any such creditors out there, but ultimately you have to decide how comfortable you are in foregoing the advertising.

    Best of luck with the estate.

    Lynne

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    1. Thank you for the information Lynne. We had joint right of survivorship (I learned this after taking a wills class; we thought we had it set up that way when we did joint, but didn't realize it had to be joint right of survivorship), so the bank said I didn't need to do anything with them. If I have made payments out of my bank account and on my credit card for items and have kept the receipts, I guess I should just double check that I can be reimbursed from the funds in the account? I was making the arrangements so quickly that I automatically paid on my own for the deposit and final payment on the funeral luncheon that my grandmother requested. I have 30 days to pay the funeral home invoice, so I can do that through the bank. I will only owe on the final payment for the nursing home, the funeral home and her final telus bill...and whatever would be owed on taxes/gst along with any pro-rated amounts I may have to pay back to the government as her room was based on daily billing and she passed on the 28th of the month.

      I heard that I should not pay the beneficiaries up front (or at least not all). When I do, is it a good idea to have them sign off? I had read something about that online. If so, is there a form letter that an executor can use?

      Thank you for all your help.

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  6. Dear Lynne: Thank you for your informative and helpful blog. Our grandmother recently passed and we are starting the process of dealing with the estate (including a jointly owned cottage and a solely owned Florida condo). We wonder if you could please provide a couple of references to "must-read" layperson guides to the probate process in Ontario. With regard to the Florida condo, we are trying to figure out if it would be best to undergo formal or summary administration of probate. Your insights and suggestions would be greatly appreciated.

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    1. Hi. Self-Counsel Press, who publishes my books, has published a probate guide for Ontario. Here is the link (you might have to copy and paste it into your browser): http://www.self-counsel.com/default/probate-kit-for-ontario.html

      Lynne

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  7. how much money in an estate would make it mandatory for probate?

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    1. There can be assets worth next to nothing that would require probate, such as mineral titles that aren't producing revenue. You have to get probate to transfer those even though most are worthless.

      But let's look at your question as if the estate has only cash in it. There is no law that says an estate with $x must go through probate. I've found over the years that whether or not a bank will release a bank account depends largely on each bank manager's discretion (within reason - no bank manager can release hundreds of thousands of dollars without probate). I usually find the top end at about $20,000.

      If the bank account is the only asset in the estate and it isn't large, you can approach the bank manager and ask whether he/she would accept an indemnity from beneficiaries instead. That would mean all of the potential beneficiaries of the estate would sign a document indemnifying the bank for paying out the money, in case a will surfaces later. They don't have to accept these, but it's worth a try.

      Lynne

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  8. Hi Lynne

    My mother past away two months ago. She didn't have a will but I am an only child and my dad past away years ago. She was renting and had nothing of real value. I gave her belongings to the salvation army and took a lot of stuff to the dump. I have only kept a few mementos and photographs.

    She had a vehicle in her name but it is not road worthy and will not pass a safety. I had it towed to a friends house for storage as I don't know what to do with it. Can I just sell it for scrap?

    Also while going through her papers I have found credit card bills in her name. I wasn't aware she had credit card debts. There is approx. $1400 in her bank account (her last CPP and OAS cheques). The credit card bills are 3 times that amount. I also found some collection agency bills for other debts. Do I notify them directly or do I just put an ad in the paper? How do I decide who gets paid and who doesn't and what proof will I need to provide to the creditors that there isn't enough money in her estate to pay them?

    Do I need to file any court papers? Do I need a lawyer for this?

    Thank you so much for your time.

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    1. Hi there,
      Often when an estate is small, there is no need to apply to the court for anything, but in this case, I suggest you think about applying to be the administrator.

      I say that because you are contemplating paying off some but not all of your Mom's debts (given her assets, this is really your only option). This is going to involve you acting on behalf of your Mom with her creditors and likely negotiating a settlement. You might find this hard to do without some legal authority to speak for her.

      When an estate is insolvent, applying to the court is cheap ($25 range). You don't need a lawyer for it if you don't want to use one.

      Yes you can sell the car for scrap. Proceeds will add to what is available for creditors.

      Putting an ad in the paper isn't going to cut it. You're going to have to add up the debts then see how much each creditor would get on the dollar. You would then offer it to each of them in writing. Be blunt and say look, this is all there is available. It's this or nothing. You will likely find that most creditors, once they understand the situation, will take the proposed amount rather than take nothing. The inventory that you would include in your application will show them everything your Mom owned, and owed. It's a sworn statement so they can take it as being accurate.

      It sounds as if you're pretty much on top of things. I have no doubt you can finish this estate off without too much stress.

      Lynne

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  9. Hi
    I would like to know how much time can lapse before the wiil is read and if the situation was common law for many years and the deceased had 3 adult children with the common law spouse as executor. The deceased had a house and assests.

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    1. Hi there,

      There is no requirement in law that a will ever be read, if you are referring to the idea we've seen in the movies of a family gathering around the table while the lawyer reads the document out loud. That almost never happens, and when it does, it's because the executor specifically asked for it for some reason. I've been doing wills law since 1986 and have never held a reading of the will.

      If you are simply referring to an executor getting hold of the original will, reading it and following it, that should happen as soon as possible after someone passes away. In fact some wills contain funeral instructions, so looking at the will isn't something that should be put off.

      Lynne

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  10. Hello,

    I posted a comment in a different Section (Can an executor distribute estate assets before getting the tax clearance certificate) but I think it's more applicable here. So I apologize for posting my question twice.

    My father passed away two years ago and his will named me as the Executor for his estate. Several years prior to his death, he asked that I go to the bank with him to create joint bank accounts with his name, and my name, on them.

    When he passed away his assests consisted of the joint accounts, as well as a pension and annuity which ceased the month he died. There was also a small life insurance payment.

    All debts related to his estate have been paid in full, taxes filed, credit cards cancelled. Following his death I met with a representative at the bank who requested a copy of the Will...and then consolidated the joint accounts into an Estate Account.

    After filing and recieving a refund on my father's tax return for the year he passed away....I disbursed the Estate Account equally between my siblings and I as per my fathers wishes as stated in his will.

    My concern now is that I never had the Will probated. I contacted the Supreme Court of Nl and inquired....and was advised that probate was not necessary if there was no real estate and if the funds/accounts were in joint bank accounts.

    I am now worried that I should have had the Will probated and woudl like to know if there is a time limit for this?....what are the implications of probating a Will 2years after the person passes away?

    I have held back a portion of the estate account until the final taxes were paid...and that amount is still in the Estate Account. So I am not concerned there won't be funds to cover the probate.

    Any advice or guidance you can provide would be greatly appreciated. I suppose the best answer is to contact a Lawyer but I feel so foolish for not having contacted one sooner....and would like to have some understanding of potential implications prior to making contact.

    Also, all transactions wtih regards to my fathers estate have been accurately recorded including tax returns, copies of disbursement cheques and balance statements from the bank/estate account, payment of debts on the estate etc. I can produce any and all documentation required to verify transactions.

    Thank you so much! I wish I had foudn this site much sooner.

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    1. Would love to hear your reply to this issue!

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    2. Sometimes it does take me a while to get to all of the questions, so sorry for the delay.

      From what you've told me, I don't really see the advantage to having the will probated. Your authority as executor arises from the will itself, not from the probate, so if all holders of assets are prepared to transfer the assets to you, there is likely no need to go through the probate process.

      Although usually it is the type and value of assets that require the executor to get probate, an executor can choose to go through probate if doing so will achieve other goals. For example, starting the clock running on a time limit, or settling a dispute about which will is valid. I can't tell from your question what is motivating you to want probate.

      Legally, you don't need it. No, there isn't a time limit on when you submit it for probate.

      Lynne

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    3. Thank you Lynne for your reply. There are no disputes to be resolved....I was just concerned that from a legal perspective I was required to have the will probated.

      One final question if I may. Should all beneficiaries be provided with some form of a Release Document that they would sign verifying they have recieved their portion of the estate and releasing me from any possible future liabilities (Not that I foresee any!). If so, where would I find such a form? Does the bank provide them?

      Thanks again Lynne. What a wonderful service you provide!!

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    4. No, the bank does not provide a Release. You can find one in the legal forms attached to the Rules of Court and its regulations for the province you live in. A good site for free legal research is www.CanLii.org. Click on your province, then on "statutes and regulations" then search for the Release form.

      Be sure to read the regulations that apply to the Release so that you know how to have it done properly.

      Lynne

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  11. Dear Lynne:

    My brother recently passed away in Toronto and left a small estate about $6000 in a brokerage accout. I am both the executor and the only beneficary in his will.

    Now the brokerage company's esate department requires a letter from a Canadian attorney that states the estate do not require probate or the esate has to be probated.

    I am residing in Texas US, it's very difficulty for me to get a Canadian lawyer or file a probate in Canada. In US, there is a small estate affidavit that serve the same purpose as a lawyer's opinion but they would not like to consider it.

    I felt that this is a very small estate and there is no other beneficiary other than myself and there is no other debt. There is no need to go through probate. So my question to you is as follow:

    1. Is there a small estate affidavit in Canada as equivalent of US small estate affidavit?
    2. What is my best option? I would like to avoid a estate lawyer given the size of esate.

    Thanks very in advance for your help!

    Allen in Texas


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  12. I truly like to reading your post. Thank you so much for taking the time to share such a nice information.
    probate law NSW

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  13. Hi Lynne: I just bought a double lot investment property with someone and we set it up as joint-tenancy. Now, understandable as the initial investment was approx. 71% to 22%, He would like to make sure his investment is returned and the remainder would be split, profit/loses, as agreed. The lawyer wants to transfer the property over to tenancy-in-common. My concern with this is, if he dies, I know have to deal with his estate. He says no, but everything I have read says yes. Although an agreement in writing has been proposed for a continuation of the initial agreement of renovating the house property and selling it. Then building on the empty lot and selling it. But I'm still not comfortable with it. I have had some exposure to the legal world and if it is not worded correctly, then loop holes can be found and I really do not want the stress. Is there a way that we could leave it as joint-tenancy with a separate will or agreement for this business venture that would avoid his estate and write up a dollar amount and % to be forwarded to his beneficiary upon completion/sale of these properties? Any suggestions? Thank you,

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  14. Hi , Lynne . My aunty left a will for me and my children , both minor 15/13 yr old. If there funds are held under trustee , who will be their trustee ? Is it their mother or anyone that us appointed by the excutor. Pls advise

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  15. Hi Lynne . Tis my next question, if funds are held until minor are 18 year old . How it will be done , will it be hold by excutor or minor parent? If by parent , can the parent use the funds before they 18 . Can aunty or friends be trustee if parent of minor are still alive.?

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    1. I answered both of your questions in a new blog post. Here's the link (you will probably have to copy and paste it to your browser): http://estatelawcanada.blogspot.ca/2012/12/who-is-trustee-of-trust-for-minor-child.html

      Lynne

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  16. Hi Lynne!
    My mom recently passed, her will was home made and witnessed by neighbours, she had already sold her home and that was the money she had, will I need to go through probate?

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    1. Hi. It's hard to say whether you'll need probate or not, but there are a couple of things here that might mean that you must go through probate. One will be the dollar amount of the money your Mom owned. Unless it's a really small amount, banks and investment advisors will usually require probate to release funds. This is because the probate indemnifies them from another will surfacing,or another benficiary showing up.

      The second thing is that there could be a problem with the will itself. Hopefully there isn't a problem, but they happen pretty regularly with home-made wills.

      Lynne

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  17. At what part of the probate process do you have the beneficiaries sign a release ( before the documents are sent to probate or after probate has been approved)

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    1. The releases are signed at the end of pretty much the whole estate. Not only do you have to have the probate done, but you also have to have the assets collected in and/or sold, all debts paid, tax returns filed, an accounting prepared, etc. Only after all that is done do you ask the beneficiaries to release the executor.

      Lynne

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  18. Hi Lynne,
    Both parents passed away in 2012. There are 4 adult children,all named in the will as executors and equal beneficiaries.
    Assets include RRIF(over 100k) and home owned for over 50 years(value approx.550k). No debt.
    We are in Ontario, and all are agreeable, (so far).
    Like everyone, the question is probate, yes or no?
    Many Thanks, we really appreciate your blog.

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    1. Hi. Yes, you'll have to go through probate. Reason #1 is that there is real estate, and the land titles registry will require probate to transfer the house. Reason #2 is the amount of the RRIF. And with the RRIF I'm assuming that your parents left it to each other, and since they are both gone it will fall into the estate.

      Lynne

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    2. Thankyou Lynne,

      Probate should be done by us,or a Lawyer?

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    3. Whether you use a lawyer to get the probate or do it yourself is a question I can't answer for you. A third option is to hire a trust company to do it. If you decide to do it yourself, the four of you will have to figure out who is going to be the one to do the actual paperwork and legwork and agree on whether this entitles the person to take a larger executor's fee than the others. If you feel that you can handle it and that all of you can get along for the duration of the process, then by all means give it a try. On my blog there is a link to an Ontario probate kit that you can get to help you. But if you feel that you're in over your heads, don't hesitate to hire the help you need.

      Lynne

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    4. Perfect & thanks. Looks like hiring would be the way do go.Is it usually billed by percentage of the estate or flat rate?

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    5. Lawyers generally charge by the hour. Trust companies will charge a percentage of the estate.

      Lynne

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  19. MY FATHER PUT EVERYTHING THEY OWN IN A TRUST FUND AND MY MOTHER IS THE POWER OF ATTORNEY OF THE TRUST FUND. SO EVERYTHING MY DAD OWN IS EQUALLY IN THE TRUST FOR HIS CHILDREN AND MY MOTHER IS THE POWER OF ATTORNEY OF THE TRUST FUND. MY DAD PASSED AWAY LAST YEAR AND MY MOTHER DID A PROBATE TO PROTECT THE TRUST, SO THE CHILDREN CAN'T TOUCH ANYTHING UNTIL SHE DIES. DOES SHE HAVE THE RIGHT TO DO THIS?

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    1. I'm sorry, but I just don't understand your question. A trust doesn't have a power of attorney. I tried reading the question using "trustee" instead of power of attorney but it still isn't clear to me. I also don't understand getting a probate to protect the trust. I suspect that part might be that there was a trust described in your father's will. That only makes sense if I ignore the parts about power of attorney completely. I also assume that when you say "everything they own" you mean both of your parents, but again, your mother wouldn't be power of attorney over something she already owns, even if the trust wasn't set up until your father's death. So, I'm sorry, I can't say anything useful about this post since I don't have a handle on the facts at all. Maybe you could give me more details?

      Lynne

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  20. My mother has just been panelled to a Nursing Home. We are 5 children and one is her POA, and executor. Her will says that the house is to be sold and divided between the 5 children. Is it not best to sell the house right away and divide the money between the children, rather than keep it in a seperate account till she passes?
    Monique

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    1. No that isn't best, sorry. I answered this question in more detail in a new blog post on Feb 4, 2013.

      Lynne

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  21. My wife and I wrote wills in November to take care of each other should either of us pass. She just recently passed away and her daughter from her first marraige had her sign a new will the day before she died. The signature is unrecognizable due to her poor health. I am devastated Is this legal.

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    1. I'm sorry to hear of your wife's passing. Having someone sign a will that close to passing away is just unbelievable. I assume that the new will substantially changes the contents of the will to favour the child or children of the first marriage.

      There are a couple of things for you to be aware of. First, a change to a will by someone that ill, so close to death, is what we call in law a "suspicious circumstance". If you raise this issue in court, it will put the responsibility on the daughter to prove the will is valid.

      The other consideration is that a spouse can't be left out of a will. Every province has laws that are often referred to as "dependent relief" laws. They basically say that a spouse must be adequately provided for by their spouse's will. If they are not provided for, they have the automatic right to claim all or some of the estate.

      To summarize, you have the law on your side here.

      I'm not in favour of estate litigation if it can be avoided. But neither am I in favour of allowing people to get sick people to sign wills on their deathbeds. I sincerely hope that you will go to see an experienced estate lawyer and talk these things over.

      Take care, and let me know how things work out.

      Lynne

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  22. My mothers sister recently passed away. My mother is the sole beneficiary and the trustee of the estate. Can she pay outstanding bills prior to probate? Does she need to probate the estate, it has a value of less the $15,000? Thank you JB in Ontario

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    1. Hi JB,
      Yes, your mother certainly can pay bills prior to getting probate. If the deceased had money in the bank, your Mom can submit the funeral bill (and sometimes other estate bills) right to the bank for payment out of the deceased's account.

      Paying the bills as quickly as possible is a good idea because paying them late only incurs late fees, interest and penalties.

      If your mother should end up using some of her own money to pay bills, she can be reimbursed from the estate if she wants to. As she is inheriting the whole estate anyway, she may not bother with getting repaid.

      Lynne

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  23. Hi Lynne: An older couple that I know have me as executor of their will because they have no living children. She tells me that I won't have to go to probate when they both die but they still live in their own home which will have to sold when they do go so I'm thinking that I will have to go through probate. Can you please tell me if I do or not. Thank you very much for you information. margaretfasciani@hotmail.com

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    1. If they own the home, as opposed to renting it, and if nobody else's name is on the title, yes you will have to go through probate.

      Lynne

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    2. Thank you for the information. Just one more question, if I may, please. We live in Nova Scotia so do you know how long it takes to get something through probate? Thank you

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  24. My father's sole asset is approximately $80,000 at a local bank...some of which is in investment certificates. Upon his passing, as the executor am I required to go through the probate process? I have 4 siblings and we are to share equally upon his death.

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    1. Hi Ted,
      Talk to the manager at the bank. They may be willing to release the funds without probate, as is often the case when there is only one asset. To go without probate, they would require you and your siblings to sign an indemnity document. Understand that a probate document indemnifies the bank for paying someone's money to someone else, so without that, they would need you and your siblings to agree that the bank is not liable for the money if, say, another will surfaces or another beneficiary comes out of the woodwork. It's up to you to weigh the risk of that kind of thing happening.

      Lynne

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  25. My mother passed away recently and my brother and I are executors. Probate is already started. My brother is buying out my portion of my moms house. We have come to an agreed upon amount. We have not agreed to the amount to be paid regarding the furniture etc. Can he rent out her house prior to probate being completed and no payment being made to me?

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    1. If you and your brother are both executors, then you should be making decisions affecting the estate jointly. If not, and you eact act unilaterally, you could have a situation where he rents to the tenant and then you start eviction proceedings, each of you on the ground that you are in charge of estate property. That would be chaos.

      Be careful regarding liability. What happens if the tenant damages the house? Who would lose, your brother, you or the estate? Are you and your brother keeping up fire insurance?

      The house is not his yet. If he rents out the house before the title is transferred into his name personally, the rent must be paid into the estate and divided between the beneficiaries.

      Lynne

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  26. When my mother passed away, all of the assets that she and my father had were held jointly, and he was named her beneficiary. There was a paragraph in her will that stated that if, however, he remarries, that my brother and I are each to be given $100,000 when he remarries.
    A few years after my mother's death, my father met someone and she moved in. They had a co-habitation agreement in place and lived together for close to six years before she passed away. When I asked my mother's attorney for a copy of her will, this attorney suddenly 'couldn't locate it'. I contacted the law office that was taking over this attorney's clients due to illness and I was told that I did not have a right to see my mother's will.
    My mother was extremely organized and savvy and insisted that I write down the contact information of the attorney who made out her will when she had her last will drawn up. She repeated this information to me two days before she died. She also told both myself and her sister about the remarriage clause she had put in her last will. I strongly suspect that the attorney who drew up both my parents' wills 'lost' her will in order to retain my father as a client as well as to obtain the new business he brought to her in the shape of his new girlfriend, who was a wealthy widow by our town's standards(her second husband left her an estate worth several million dollars). My mother's will is no longer in the file where it was kept for years. I suspect it ended up in the fireplace.
    My question is this: does a co-habitation agreement override the fact that this woman was, in fact, my father's common-law wife since they lived together for over three years? And if she was considered his common-law wife, then are my mother's wishes to be enforced?

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    1. Interesting story. Let me start off by saying that lawyers don't really risk their entire license to practice law, their livelihood and their income just to retain one will client. That's just looking for a scapegoat. No single client is worth never practicing law again. The new girlfriend might have millions but the lawyer would only make a couple of hundred by making her will.

      Now on to your question. The first thing that jumped out at me is your statement that all of your mother's assets were held jointly with your father. If that was the case, there wasn't actually anything to leave him in the will. Joint assets are already owned by the surviving joint owner, so her will would have had nothing to do with it.

      Second thing I wondered about is where this $100,000 is supposed to come from. If your father owns everything, how is your mother's estate supposed to pay you money? There is no money left in her name from what you've said. She can't give away money that she doesn't have.

      Your mother might well have believed that this clause was in her will and believed that it was effective, but it couldn't have been if everything went to your father. I suspect that she didn't have good advice, or that she misunderstood the advice she was given. Or, maybe I don't have all the facts...

      It's frustrating to be told that you can't see a parent's will, I know. But unless you're named as a beneficiary, you're not entitled to see it. And you've said that your father was the only beneficiary of your mother's will.

      As for where the will went, that's anybody's guess. I take it the will was never probated. If it had been probated, obviously the court would have it. It was likely removed after your mother passed away, though you'd think the lawyer would have recorded where it went or who took it.

      I don't know which province you're in, but common law rights vary widely across Canada. In some places common law spouses have no right to inherit anything, and in others they can actually override the rights of a married spouse. But in your case, I think there are actually bigger questions out there about your mother's will that aren't really about the common law question.

      If you ever do find out more about the will, you should think about taking it to a lawyer in your province for an interpretation.

      Wishing you the best with this,

      Lynne

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  27. Hi Lynne, thanks for your time. My husband and I recently did our wills through an online will kit. Do you think it's a necessary step for the witnesses to sign an Affidavit of a Witness to a Will?

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    1. Yes, I do. For a full answer and my reasons for this, check out a new blog post dated Feb 25, 2013.

      Lynne

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  28. Are capital gains taxes payable upon the sale of a vacant leased lot in a Manitoba Provincial Park?

    ReplyDelete
    Replies
    1. This is something you should ask an accountant.

      Lynne

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  29. Hello,
    Your blog is really helpful. Thank you.
    I have a question about probate and affidavits. In Ontario, do I need TWO affidavits of execution (one from each of the witnesses who signed the will) for probate? Or is one enough? Thank you very much!

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  30. hi lynn .i am writing to you from nova scotia .back in 2009 while my mother was still alive and dad being gone a couple of years previous my mother signed over her home to one of the brothers which at that time there were six of us on the condition that when he became financially stable that he was to buy out the other five brothers.he ran his own company).anyway mom at that time dying of cancer signed her home over to him.now,he was in the process of eluding creditors as he was going bankrupt . my mother did this in june of 09 and then he promptly put the family home in his g/friend's name 34 days later. well shortly after mom passes and he never took back possession of the family home and low and behold he passed away in nov of 2012.we requested to see his will and we got a reply back from a lawyer basicly stating that she being the x girlfriend )not to contact her in any way shape or form and that she would not give us any paperwork,will or otherwise.now he did give us a small stipend and telling us that the rest was coming . my question to you is this although he deeded her the house(oh by the way he was an alcoholic and suicidal )is there any way that we can get our mothers home back from this person .thank you very much for your time hoping you can shed a little bit of light on this for us

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    Replies
    1. Hi. I know this is not the answer you want, but you are probably out of luck. I say this because establishing ownership of the property will be based on the paper trail that exists, and from what you've said your mother signed over the land. The condition that you mention seems to have been verbal only, and contracts regarding land must be in writing. Your brother clearly didn't think there was a contract or he would have transferred the land to his siblings and not his girlfriend.

      I'm assuming that your brother's girlfriend isn't sharing the will with you because you are not named as beneficiaries, which would be standard. However, I'm a bit confused by the stipend you mentioned and "the rest is coming". That seems to suggest that you are in fact beneficiaries of your brother's estate.

      Lynne

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  31. Hi Lynne,
    I am writing from Ontario.
    Sadly, our Mother passed away a few months ago!
    She unknowingly left my sister and I in a very bad position.
    We were named Executors in her legal will for years.
    Just before she passed away she decided to add to her will.
    What she ended up doing was a New "Holograph" will. She signed and dated it, had two friends witness it. They were alone with her, but at different times.
    We have no problem with the Holograph will, or her wishes, however, Mom forgot to name us as her Executors. She is directing us in her new Holograph Will by our first names, but forgot to name us as executors!
    She also recently remarried, and did a prenuptual agreement with her lawyer stating that her new husband has Life Estate in her home, with all contents, until he passes away!
    Her Lawyer is now stating that her old will is void now that she is remarried, which this is the same Lawyer that did her prenup, so shouldn't he have made her do a new will at that time?
    I don't think he is up on estate law at all.
    We directed him to go to a Judge and see which will is valid, and get us reinstated as executors!
    He decided to get the advice of an estate lawyer along with a letter of opinion, to the fine tune of $2,000.
    Is this our bill Lynne? We didn't direct him to do this at all!
    Now it will still have to go to a Judge which is what we directed him to do in the first place!
    We payed for our Mother's funeral, and some bills. (her new husband did not pay for her funeral.)
    There is no money from her estate whatsoever.
    Her named beneficiaries of her life insurance policies were disbursed right away!
    Her accounts were thousands of dollars in overdraft, which my Mom had my sister and I sign on her account many years ago incase something were to happen to her.
    The bank asked to see the Will. We showed both Wills. He copied both wills, and immediatley sat down and old us that our Mother's debt is now ours!
    Is this now our debt Lynne?
    We signed on her account so that her assets wouldn't get frozen. Nobody ever explained to us that this was our account also, and that any debt would become ours!
    When the house eventually gets sold, can we pay ourselves back the monies that we have lent the estate first? Or who get's paid first?
    We did get a couple of government cheques made out to her estate, but I don't believe we can cash them without being executors?
    It is highly unlikely that there will be alot left over from the estate after the debts are paid, and we are unsure of how to pay the beneficiaries, including ourselves!
    We think that there will be enough to pay her grandchildren (they are named first), but we also have a disabled brother who she has money named for him as long as it doesn't interfere with his pension.
    We will be lucky if there is enough left over for our brother, and anything for us!
    How do we divide the residue between my brother, my sister, and myself, when the specified amounts just won't be there?
    My sister and I would also like the monies that we lent the estate.
    Do we pay ourselves back first?
    What bills get paid first? (we are trying to get most of her bills written off at this point.)
    We would deeply appreciate any advice on this Lynne.

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    1. I can hear the stress and bewilderment in your note, but I couldn't possibly answer all of your questions in a blog post. This is what your lawyer is for. If you don't have confidence in him, you should have someone else. Why you went back to the same lawyer in the first place is a mystery to me, as part of your question has to do with whether the lawyer knows enough about estate law. As for him getting a legal opinion on an issue - I agree that you should not be paying for this if you didn't authorize it. He can do his research and get his skills up to scratch on his own time, not yours.

      You state in your question that "nobody ever told you" how the joint account works. But who did you ask? Nobody should be giving you legal advice about your rights and obligations other than a lawyer. It doesn't sound as if anyone actually asked a lawyer about the account. There's no point asking for legal advice at the bank; they are bankers, not lawyers. If you are in fact joint owners, then yes the overdraft is your debt.

      I've said a thousand times on this blog that parents shouldn't add kids to their accounts but nobody ever really thinks the bad stuff is going to happen to them.

      I think asking the court to sort out the wills is a good idea. Ideally, they may find that the holograph will is actually a codicil to the first will, which would allow you to be the executors but carry out your mom's most recent wishes according to the holograph will.

      Lynne

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    2. Hi Lynne,

      Very informative information from you, thanks.
      I have been asked to be the Executor of a Will for an acquantance. He had a previous Will that he wanted to have redone. I did this all the while abiding by his instructions and wishes. When it comes to him signing his Will in front of two witnesses who sign, can I be one of the witnesses? There is a provision in his Will, leftover from the previos Will, that states:
      "EXECUTORS COMPENSATION

      I AUTHORIZE my Trustee to take and transfer, at reasonable Intervals, from the income and capital of my Estate amounts on account of compensation which my Trustee reasonably anticipates will be requested at the end of the accounting period in progress, either upon the audit of the Estate accounts or on approval by the beneficiaries of my Estate. If the amount subsequently awarded on Court audit or agreed to by the beneficiaries is less than the amount so taken, the excess shall be repaid to my Estate without interest."
      Thank you for any reply that you provide.

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    3. When you say "I did this, all the while abiding by his wishes and instructions", are you saying that you prepared a new will for him? And you don't even know what the clauses mean? Why would you do that? And why on earth would he allow it? As for being a witness, when this will ends up being probated, if there is something wrong with it (and the odds are pretty darn good) do you really want to be the executor, AND the witness AND the person who drew up the will?

      Lynne

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    4. Hi Lynne,
      I just wanted to say "Thank You so much for answering me so quickly!" You have addressed most of what I needed to know, and I, along with my sister are so grateful to you!
      We just LOVE your Blog! What a wealth of information, and how kind of you to answer our questions!
      I am sure that I can speak for everyone on your Blog, "you are one in a million, Lynne!"
      Thank you!

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    5. You're so welcome, and thanks for the very kind feedback. Reminds me of why I'm often still typing away at 2 a.m., or in airport waiting rooms, or in taxicabs!

      Lynne

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    6. Re: April 4, 2013 at 7:14 AM.
      Thank you for your frank reply Lynne; I appreciate it.

      Delete
    7. Hi Lynne,
      Just an update from Ontario (dated April 1, 2013)

      My Sister and I have a new lawyer.

      His opinion on our Mother's Legal will, and Holograph will is NOT to take both to the Judge to see if they Holograph can be used as a codicil to her original will. He feels strongly that the Holograph is the legal will.

      He states because my Mother remarried a couple of years ago her legal will naming my Sister and I as Executors is invalid (but Mom did a prenup/marriage contract on her home giving her husband life estate, and her husband has signed off legally on any rights to her home re: family law act.)

      As you know she forgot to name us as Executors in her Holograph will, but she directs my Sister and I by first names.

      This new Lawyer say's the Holograph is the legal will, and refuses to hear what we have said to him to take both wills and see if the Judge will add the Holograph will to the old Legal will as a codicil!

      We just had another appointment with this Lawyer, as he wanted to have a witness to my Mom's handwriting, plus he wanted to see our Mother's new husband, wanting him to sign off as an executor, but he stated that he had no paperwork prepared for this appointment for her husband to sign off, and he explained to her husband that he does have the right to file as the Executor, being next of kin!

      Lynne, what is the best procedure for us to follow?

      Should we be trying to resurrect the old will, and use the Holograph as a Codicil, or just use the Holograph as her new legal will?

      We aren't sure that he is acting in our best interest, but we hate to jump to another lawyer!

      Can we do all of this on our own with the Judge, or at least some, and if so, what can we do?

      Thanks Lynne






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  32. My father recently passed away + my mother had thought her house was joint. The document (land title) actually states _my dad_ *and* _my mom_ (not and/or) .. She was told by her lawyer that it should have stated _my dad_ and _my mom_ *in joint* .. And that those two words missing means that my mother needs to now go thru probate to have the house transfered into her name --- really?? (The original lawyer that wrote the will is no longer alive)
    Is it true that she now has to go thru probate??

    ReplyDelete
    Replies
    1. If the house is not held jointly, it is held as tenants in common. If that is the case, yes, there would have to be probate to transfer your dad's share of the house to her. It's likely that your dad also thought the house was jointly held, as that is by far the most common arrangement for married couples so that the survivor doesn't have to get probate.

      Lynne

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  33. Hi Lynne,

    My father passed-away in March of 2013, and the Will is not probated as the wife made sure that he put everything in jointly and made him
    sign the title of the house to joint when he was in the Nursing Home. I might add that the Will that I have a copy of in dated 2008 ( and I believe he was not of sound mind.) He left everything to his wife and upon her death, it is to go to her children and nothing to his 3 biological children, because he states that when his first wife (my mother passed) he gave the 3 children the proceeds of her Life Insurance to us) which is not true, also he states that he proceeded to give us a large amt of monies after her death., Which again is not true. The will is written with the Spouse words as
    she made sure that the 3 biological children receive nothing. Also the will is witnessed by a friend of the Stepdaughter and the Lawyer is also a good friend of stepdaughter. What a fraud this whole thing is. My question is: Can a person contest this will at all, or would I be wasting time and monies. The original will did state that the house which was purchased with the proceeds of my mothers monies and fathers monies was to be sold upon the death of his second wife and divided between the 3 children of his first marriage. Please help me as this is not at all a fairness. I would very much love to talk to you I really need help,

    ReplyDelete
  34. Hi lynne

    Does a Will have to have to state that he is
    being of Sound Mind and Body indicated on it, and if not is it still valid. this Will is of British Columbia. I don't know the laws there.

    ReplyDelete
    Replies
    1. If those words are missing, it does not invalidate a will.

      Lynne

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  35. My father is dying and my mother is joint/survivorship or beneficiary for all accounts, however their car is registered in his name only. Do I need joint registration in Ontario to avoid probate on such a small matter, or will she be able to sell the car if she wants.

    ReplyDelete
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    1. I'm sorry to hear about your father's illness. Your mother should be able to transfer the car without going through probate.

      Lynne

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  36. My husband passed away a few years ago and I have settled all items except US stocks he had been given by his company in his name, held in a trust in the US. As far as I know, I have not been cited as the beneficiary, but I don't know for sure. I have not had to probate the will for the life insurance benefits that went to the children (and were so names as beneficiaries in the will). All other items flowed through to me. Could there be any options other than probate? Can I just request the shares be put in my name (rather than cashed it)? Sorry if I'm getting terminology incorrect!

    ReplyDelete
  37. Hi Lynne - I live in the US. A friend in Ontario recently passed away (2012) and I was informed via email (through my friends email account by a third party) that I was left his property in the US.
    It has been over six months and I have npt received any official notification. However, it is a large and complex will.
    When would, or should a beneficiary normally receive notification?

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  38. My father just passed away and has a will naming me (his son) as his executor. The will to me seems very simple; once his affairs are settled, the residue of his estate is to be equally divided between myself and my sister. His assets essentially consist of two modest bank accounts and an investment account, his material possessions and his car. There is no real estate. In your estimation is this a situation where probate is required?

    ReplyDelete
    Replies
    1. Hi. I'm sorry to hear about your father's recent passing.

      You may not have to apply for probate, but it will depend on the amount held in the various accounts. The investment account in particular may end up requiring you to get probate. I can't recall ever seeing an investment account handed over without probate, but in theory it could happen if the amount is very small (under $20,000).

      Each bank has its own limits set by its own internal policies about how large an account they are willing to release without the protection of probate, and you will have to enquire at the bank(s) where your father banked to know for sure. Ask the manager; front line staff have very little, if any, training in estate matters so you might as well go right to the top.

      Lynne

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  39. Please advise how it is determined, in which Province your will must be probated.

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    Replies
    1. It's determined by looking at each province's legislation. The general rule is that an estate is usually probated in the province in which the deceased lived at the time he or she passed away. This applies to by far the majority of cases. In some circumstances the probate can be applied for where the deceased did not live but had assets, particularly if the asset is real estate.

      Lynne

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  40. Hi Lynne
    If the Will has untruth in it, can it be challenged, example: Father who passed away indicated he gave us certain amt of monies from Mothers Death, but he did not; therefore he leaves his children nothing; as he indicated that we had received enough. Can we prove that he didn't, give us any, or is this now heresay?

    ReplyDelete
    Replies
    1. This is certainly an interesting situation. Does your father's will simply make a mistake as to the amount given, or are you saying that no money at all was given to you? Has your father given you sums of money that you believe are funds from sources other than your mother's estate? It seems very odd that your father would say that he'd given you and your siblings money if he actually hadn't. I get the feeling there are facts here that I haven't heard.

      Who gets the estate if the children aren't going to get it? There may be important facts here, such as a second wife. And who drew up the will? Was it a lawyer? I hope it was, as the lawyer will have notes regarding your father's instructions about leaving out his children, as well as your father's mental capacity.

      You can't contest a will for containing untruth. However, there may be alternatives. If you live in BC, you may be able to apply under the Wills Variation Act to have the distribution under the will changed.

      You should understand that if you apply for that, you're not really contesting the will. Contesting it means that you are trying to have the entire will thrown out. Maybe, depending on the quality of the will, what you want to do is allow the will with its executor appointment and powers etc to stand and simply change the directions for who gets what.

      I'm not at all sure what you mean by something being hearsay. Hearsay means something a witness has no personal knowledge about. You can't be referring to you proving you didn't receive money, as obviously you do have personal knowledge about what you received and what you didn't. And you can't be referring to the words in the will, as they are signed by your father and are not hearsay. So sorry, but I can't address that last bit intelligently at all.

      Lynne

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  41. Dear Lynne:
    I'm at my wits end. My husband passed
    in February. An estate account has been created at the bank, which is frozen. Due to Fraud committed several years ago, my husband owes back taxes to the CRA in excess of $150 thousand dollars. There will not be that amount in the estate account after all is said and done...to pay them. I have been nominated "Executrix"...Do I have to accept this role? Can the CRA take monies from me personally (not estate money) to settle this debt? The previous fraudulent accountant that stole monies from my husband has done jail time and declared bankruptcy, so there is no way to recover money from him. Any advice would be greatly appreciated.

    ReplyDelete
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    1. It has taken me a long time to get to this question, so I hope my answer isn't too late. With any luck, you went to see a lawyer already. No, you don't have to accept the job of executor, as long as you turn it down right at the beginning. If you start acting as executor, you cannot quit later unless the court says you can. If you are named as executor, who the heck set up an estate account at the bank? Nobody else has the right to do that. Most likely, the bank simply froze your husband's account, which would make more sense to me. No, CRA will not pursue you for your husband's back taxes, although if you were to receive certain kinds of assets from him, such as an RRSP which does not flow through his estate, you should expect CRA to pursue you for the tax on that.

      Best of luck,
      Lynne

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  42. My father passed away in Feb 2013 (mom passed in '96). He had a lakeside recreational property an hour from his city and when my sister's marriage dissolved in 2003 she moved to the cabin - originally on a temporary basis, but as time went by this became her residence and because my dad hardly ever went out there in 2009 my father asked me if I had any grumblings about him giving the cabin to my sister as her part of his estate - as she was living there and loved it - at the time she acknowledged that it would probably be short of her third of the total of his estate but she was fine with that. He said that would be her portion of his estate and when he passed away my brother and I would split what was left (his primary residence in the city worth today about $350,000.00, bank accounts ($10,000.00), insurance $6,000.00), RRIF($7000,00). I said it was fine and for other reasons my brother was not consulted at the time. I saw what I thought was my dad's will after that and those terms were clearly laid out, but after my dad passed away a new will came to the surface, as it turned out he had gone to his lawyers about 9 mos after the will that I saw and changed things. Dad was always so concerned that everything be split evenly 3 ways between us (something he reiterated over and over and fretted about) and felt that my sister was going to be short changed so he went back to his lawyer and now said that the cabin was given to my sister (she has title) and the value was $130,000.00 and that my brother and I would each get $130,000.00 from the rest of estate and the estate balance beyond that was now to be split 3 ways. The problem is that the cabin's market value today is $250,000.00 - not $130,00 (where he got that figure we don't know) - the May 2012 tax assessment on that property valued it at $224,420.00 and it's market value is worth a bit more than that. I feel that my dad's will lawyer made a massive mistake by putting an actual dollar value on the cabin instead of just wording the will as whatever the "fair market value" was and then going with that number - I would be fine with that. As it stands now when my sister sells the cabin (which she has stated she is going to do within the next couple of years) she's going to end up the big winner - flying in the face of what my father wanted and was so concerned about. She's sitting on a $250,000.00 property outright and is now getting a third of what is left. I mentioned this to my sister and I ended up looking like a trouble maker making a fuss over the will and she said she "wasn't going to go against dad's last wishes", even though she is well aware of what her property is actually worth. My brother's wife is the realtor that is selling the property and will make about 15 grand in realty fees so he's not too concerned with the discrepancy either and just wants everything over and done with. The will is presently in probate in Alberta, I live in BC. I really don't want to cause trouble as such but I'm stunned that no one seems to see the problem with a wrong valuation - and my uncle who is the executor (and elderly) really doesn't see a problem with that valuation on the cabin either and he's stated he's just going by what is in the will. Everyone seems to be ignoring dad's wishes that above everything else it be fair. What are my options? The application for variation? Will the probate process catch this obvious "error"? That's what I'm hoping for as I don't want to alienate my family but this bothers me.

    ReplyDelete
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    1. No, the probate process won't catch it, because it isn't actually an obvious error. The probate process will confirm your father's last will as being just that, his last will. As soon as your father signed that will, he revoked the old one. So, despite what your father said earlier, and despite other members of your family being aware of this, the new will legally represents your father's last wishes.

      The variation application that you refer to is not available in Alberta, as that law is specific to estates in BC.

      You might have some luck, depending on the wording of the will, if the gift of $130,000 is prefaced with wording that states the goal is to equalize you and your brother with your sister. A judge might interpret that in a way that would update the value from $130,000 to its real value.

      However, understand that you may well "look like a trouble-maker" if you make this application. You'll have to decide what's most important to you. Also, be mindful of the cost of a court application, as you can only hope to have the estate cover some of your costs if you win, and even then it's not guaranteed.

      Lynne

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  43. Thank you so much Lynne, that helps!

    The phrase in the will that is problematic is stated:

    7.1 "I have during my lifetime transferred my cabin located at *** and contents to my daughter, (my sister) as her share of my estate, which is to be valued at $130,000.

    7.2 The first $260,000 of the residue of my estate shall be divided equally between my children, (my brother) and (me). If the net residue of my estate exceeds $260,000 the balance of the net residue of my estate that exceeds $260,000.00 shall be divided equally amongst (my sister), (my brother) and (me).

    Does that sound like it is trying to equalize all of us as you mentioned and possibly have a chance with the judge?

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    1. This happened in our family as well ... And Lynne is right that "You'll have to decide what's most important to you" .. I 'get it' that you want to honor your dad, but you are going to look like you are just after the extra money. Plain + simple, breathe in and let it go.
      In my personal situation - My one sister that lives at the cabin property of my late dad, we felt, deserved the extra increase in property value - somewhat of a lottery type bonus (her luck) as it could have decreased in value too -- as well, she took care of the property for several years and that was very helpful to our dad and as one of the other 2 children, I didn't do anything at the property. Nor did I do anything at our dad's primary residence either. She actually did some small upgrades and in a sense saved our dad a lot of money as she mowed and weeded and watered and upkept the property just like a property manager would --- think of the extra property value as a property manager wage and let it go. There, now its even.

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    2. Thank you for your comments and yes - I chose family relationships over any extra cash very early on. I guess it's more the fact that I knew that dad wanted it all to be equal and fair above anything else and he ending up screwing up with the will and the way it's ended up it just isn't fair. Last summer he was stunned when he found out that the cabin was worth 250 grand and he told my sister and I then that he was going to go back to his lawyer and re-address his will. At the time my sister and I didn't realize that he had changed his will to value the cabin at 130 grand and so we thought what was the point of going back to his lawyer? He never bothered after that partly because we kept telling him not to and partly because he wasn't well and very tired so he never got there. Had I known about that valuation part in the new will at the time I would've encouraged him to go, but I told him not to worry about it, that she had the cabin and my brother and I were splitting everything else - he had already transferred title to her for the cabin in 2009 so it was done and dusted as far as I was concerned. I guess I'm disappointed in my sister too as she is well aware what it's worth and is happy to come out head and shoulders above everyone else financially as she has stated she's planning on selling within the next few years. Oh well, it is what it is and if a judge takes issue with it then we'll see what happens.

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    3. I agree, some of this stuff is pretty hard to take, when you believe your Dad would have liked it to be otherwise. The only options left, perhaps, is for your sister to voluntarily waive part of her inheritance, or for her to share the proceeds of the sale of the cabin with you two.

      Lynne

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  44. Hello, my dad just passed. My mom is ill but stable at the moment. There is a simple will... not sure what it says exactly i have not read it myself. There is an executor my brother. Now for the house the main asset should he add his name to it? To avoid probate? Or should all the kids be added? What happens when mom passes? will he take possession of the house and then he will have to sell the house to get money to split between the kids? I know it would be his house but i assume he would just follow the proper order?
    Thanks this is an interesting read.

    ReplyDelete
    Replies
    1. I'm sorry to hear about your Mom being ill so soon after your Dad's passing. I don't like the idea of the executor's name being added to the house. That conveys ownership, which is not the executor's job. Adding all of the kids would be a disaster, so please don't do that. As your Mom has a will, it's better to just follow it. Besides, if your Mom is really ill, it's not fair to ask her to sign documents to transfer her house, even if she is still mentally able to do so.

      Lynne

      Delete
  45. If my father died without a will and a daughter had Power Of Attorney stating that it would remain in effect upon his death until all financial and or medical was resolved. Is this legally accepted. He owned his home worth maybe $35,000. Is there some form the brothers and sisters can sign passing the house over to one sibling. All siblings are in agreement. Would it have to go through probate?

    ReplyDelete
    Replies
    1. The power of attorney ceases immediately upon your father's death. You cannot use the power of attorney to transfer the house.

      I have no idea where a person can own a house worth only $35,000, but wherever it is in Canada, you will need probate to transfer it.

      It's great that you siblings are all in agreement about what to do, and I wish I had better news for you!

      Lynne

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  46. I am the wife of a decedent who left his estate to be probated in the hands of his siblings. Can I contest the estate or question the probate process of the will? My son was named sole beneficiary of his father's estate and he has heard next to nothing about what is going on. The family has not been very cooperative as their brother and I were separated and that in itself was a disaster as he tried with all his might to take the marital home from me right up to two weeks before he died.

    ReplyDelete
    Replies
    1. If you are the legally married spouse, you may make a claim against the estate for a share of it. This right automatically arises in all provinces in Canada simply because you are the spouse, and considered a dependent. The usual deadline for doing this is 6 months after probate. See a lawyer if you want to do this, as there are papers to be filed and affidavits to be sworn. Separation won't matter unless there was a written settlement agreement.

      Lynne

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  47. My mothers townhouse was in joint names with myself since 2002. She recently passed away and the title was transferred into my name alone. Because this is not my primary residence will there be capital gains that I will have to pay once the townhouse sells?

    ReplyDelete
  48. Hi my dad died leaving a will stating that the property and any funds be split equally between myself and three sisters. My sisters have been transferring money out of dads current account into an account in their name total amount £100,000. My question is as the money is in their name and not dads name does the money belong to them? Or can I legally get my share? I do not speak to my sisters due to them not looking after dad whilst he was alive and not having anything to do with him until the last year of his life. Can you please help me as I have posted twice and it keeps disappearing. Thank you in advance.

    ReplyDelete
  49. Can a beniferies boyfriend whom she lived with over 3 years be able to sign a affidavit of execution of will or codicil

    ReplyDelete
    Replies
    1. This will depend on the jurisdiction where the will or codicil is going through probate. As a general rule, he wouldn't be eligible to sign the document because the rules bar a spouse or common law spouse of a beneficiary from acting as a witness.

      Lynne

      Delete
    2. Lynne where do you get a affidavit for execution of a will and if Executor is stealing from BC Estate and lying keeping folks in the dark does this affidavit help for this reason or can one go straight to Attorney General

      Delete
    3. I'm attaching a link to a form called Affidavit of Executor which you can find on an excellent, free, legal research site called www.CanLii.org. Here is the link: http://www.canlii.org/en/bc/laws/regu/bc-reg-168-2009/latest/part-5/bc-reg-168-2009-part-5.html#Form91

      From your question, this seems like the document you want, but make sure you read it first to make sure it is the right one.

      No, this affidavit doesn't help. All it does is present the will and attest to its proper execution.

      If an executor is lying and keeping people in the dark, which I have to admit seems to be a pretty misguided but common way for executors to act, your remedy is through the civil courts. You'd have to hire a lawyer and sue the executor.

      Stealing, on the other hand, is a criminal offence. Estate matters are civil matters, and rarely do they actually tip over into criminal law. It seems that what you really need is for the court to compel the executor to explain himself, and prove that estate assets are still all there. If things are not above board, the executor might be removed, or might be forced to pay back the missing funds. And yes, if it's really bad, the court could find him guilty of criminal conduct.

      Lynne

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  50. Hi, today I went to see a lawyer about a case in probate his rates were $325/hour or $30,000 + 25% of the estate seemed alittle high or is this the normal rate

    ReplyDelete
    Replies
    1. That depends on what you mean by a "case in probate". If the only thing the lawyer is going to do is get the will probated, then yeah, that sounds pretty high. To get probate, you would probably expect the lawyer to get about 1.5% of the estate.

      If you're talking about litigation, that's another matter. The hourly rate makes a person wince, I know, but it's not that unusual for a specialized lawyer. I could see $30,000 for a lawsuit.

      Lynne

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  51. My father passed away nearly 30 years ago, leaving his property to my brother and I. To this date, the will hasn't been probated, in spite of my pleading with my sister-in-law, who was named executor. Can I force the issue, and what compications do we face dealing with the probate after so many years? I know that the taxes have been paid on the property, and it's been maintained, but that's the only information I have about it.

    ReplyDelete
    Replies
    1. If you've been waiting 30 years to receive your inheritance, then yes, certainly you can force the issue through the courts. Make sure you have all the facts when you go to see a lawyer though. For example, it's pretty darn strange for an estate to be held for 30 years unless there is a reason, such as a life estate for someone who is still alive, or a trust. If you get a copy of the will, which you are entitled to have if the property is going to go to you, take it to the lawyer so that he or she can see what's going on. The lawyer will likely want to communicate with the executor to get more information as to what she has been doing with the property, and why.

      An issue that the estate might face after all this time is capital gains tax on the property, if it increased in value during the last 30 years. If the property was not supposed to be held all this time, there may be an issue as to who has to pay those taxes.

      Lynne

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  52. Hi I was the one that asked if the cost were to high my great aunt was a victim of elderly fraud not proven yet but in probate court the lawyer said he is sure that he can get her will changed back to the orginal to do this his charge is $325/hour or 25% plus 30000 is that high

    ReplyDelete
    Replies
    1. I don't really understand the "25% plus 30,000 bit". What is the point of the percentage if you then add on a dollar amount? It should be one or the other, unless he means that the 30,000 would cover out-of-pocket expenses. The rate of $325 an hour is about usual for experienced lawyers.

      Lynne

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  53. Hi Lynne,

    The will named 4 executors to the will. The main asset is a house and property. Do we need to probate the will and how long do we have to execute the will. Can one executor delay the process indefinitely.

    thanks

    Larry

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    Replies
    1. Hi Larry,

      FOUR executors? What on earth was that person thinking? Before trying to go ahead, check the probate rules where you live because some jurisdictions will not allow more than three executors.

      If there is a house in the name of the deceased, yes, you will have to go through probate, unless that house is held jointly with right of survivorship with another person. I doubt that joint ownership is the case here, or you wouldn't have said it's in the estate.

      An estate like this with no major issues, businesses to wrap up, etc, should be done and over with in a year, assuming the house can be sold in reasonable time.

      Yes, one executor can delay the process, because all four of you must agree on everything. Good luck with that, especially if you are siblings, as I suspect you are.

      Maybe before going ahead, the four of you could talk together and frankly admit that this is going to be one heck of a rough road if all of you have to work on the estate. Perhaps you could all agree on one of you who could be the executor and the rest of you renounce your executorship. If you aren't able to trust each other to do that, and you can't agree, consider asking a trust company to do the estate instead.

      This approach might avoid three of you having to ask a court later on to remove one of you for delaying and obstructing the estate.

      Think it all through before going ahead.

      Lynne

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  54. Hi Lynne. My father recently passed away, leaving mom as his Executor. He had been ill and in hospital for a few months; during that time mom moved out of their house and into a senior's residence with dimentia care. Her eldest son has the EPA. MOST of my parents' bank accounts were joint, but he had one account in his own name with around $120,000 in it (his assets are just under 1million). House, cars etc are all joint. Will the entire estate have to go to probate, or just that one account? And if it goes into probate and freezes all the joint accounts, what funds remain for my mom to pay rent at her seniors' complex?

    ReplyDelete
    Replies
    1. Assets that are held jointly with your mother will go to your mother by right of survivorship. Her eldest son, as POA, will have to take care of paperwork for her, such as taking your father's name off the joint assets. Only assets that are in your father's name alone are subject to probate.

      Lynne

      Delete
  55. My wife passed away and did not leave me in the will. we had no children she left the estate our matromonail home to 3 of her friends. i have filed under the family act. theses friends have sold the home prior to probate. because they threw me out of our home. would this had been mine after 35 years of marriage and my wife never worked.did they have the right to throw me out. and the right to sell prior to probate

    ReplyDelete
    Replies
    1. They could not have sold the house prior to getting probate. That isn't legal, or even possible. They are not telling you the truth.

      I assume these people were appointed as executors. If so, they are required by law to wait the amount of time (usually 6 months) prescribed to allow you to file your claim.

      The lawyer who is helping you with your claim should be able to do a title search to see whether the title to the house as in fact been changed. If the executors have acted illegally, your lawyer can help you deal with that in the court. Most likely they would be required to pay you out of pocket if they sold or lost estate items, especially a house. And that's not even mentioning the contents of the house.

      The rights of spouses vary somewhat between provinces when it comes to the matrimonial home. Most give a spouse a life interest (which is not the same as ownership) in the house. However all provinces have laws in effect that are designed to prevent exactly what happened to you. My guess is that your lawyer is covering this off in your claim.

      I'm sorry to hear that this has been such a nightmare for you. People can be so cruel to each other. Hang in there.

      Lynne

      Delete
    2. Thank you so much Lynne . I live in Ontario. I was Pushed by the Executor to sell the contents of the home and to give half to the estate. Then told to get out of the home. I have since been given by the court a copy of assets that was probated . And they only probated a GIC that my wife had at the bank. They never probated the house asset or let the court know there was a house and property. They had the house money sent to the executors lawyer by passing the probate and my wifes estate account. How can this be legal to not include this asset in probate.

      Delete
  56. My mother left her estate, consisting of a GIC worth about $200,000, to be divided equally between me and two of my siblings, one sibling having been disinheirited many years ago. How does probate and the Wills Variation Act affect this estate and how long will it be before the estate can be distributed? Thank you.

    ReplyDelete
    Replies
    1. How do you figure a person is disinherited if they are named in the will? And how could it happen "years ago" if your mother recently died?

      Lynne

      Delete
  57. what a lot to read,. BUT it's all good.
    well done.

    ReplyDelete
    Replies
    1. Glad you're enjoying it. Thanks for reading :)

      Lynne

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  58. When my nieces were two and eight, my brother-in-law was killed in a car accident. There was no life insurance but my sister and he did own a home which she sold a couple of years later for about 160,000. She remarried. She died of cancer last year. She had life insurance worth about 300,000, a newer car, and she and her new husband had purchased a home worth about 225,000. On her death bed, she told me that her kids would be well provided for. Her new husband me another lady only three months later, who did not want children. He threw out the children, aged 16 and 21 and they were left with the clothes on their backs. One is now living with my parents and the other is going to college; I have paid for this with a line of credit since I am a single mom and sole support of two children. There was a will and I believe the house was left to her spouse. My understanding from her was that the life insurance would go to the children. I suspect the spouse changed the beneficiary to himself on the life insurance without her knowledge or consent (she was not of sound mind at the end because of extremely high pain medication). I am concerned for my two nieces who are now orphaned and have no inheritance from either parent. Is there any legal recourse to help these two children?

    ReplyDelete
    Replies
    1. There is no question that the 16-year-old has recourse. He or she is a minor and therefore has a right to be supported by the estate of a parent. Under normal circumstances, if an entire estate is left to the surviving parent there is no need to leave anything to the children, but given that the children don't live with their father, the 16 year old is entitled to a share of the estate.

      The insurance company will have a record of changes to the beneficiary of the policy. However, they aren't going to show that to just anyone so asking for it isn't going to help you. In the case of a lawsuit, that information could be obtained.

      Lynne

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  59. my sister and I are executors of my fathers estate. before probate she took my fathers Cadillac and and put it in her boyfriends name, without my permission. I have asked for a copy of the bill of sale because I have reason to believe that she had to have forged something to do this. now it is out of probate and there is now a $2100.00 cheque unaccounted for. I was told it was cashed. what are my legal responsbilites to take action?

    ReplyDelete
  60. Hello Lynne,

    My grandmother passed away in 1988 and the property she owned, a farm, was to be divided among her children. Her will was never probated and now my father has passed away three years ago.

    My mother is having problems probating his will because my father's sisters now claim that the farm is to go to the last surviving child. My father wanted to pass his portion of the land to his children but my aunts don't agree.

    My mother has a copy of my grandmother's will but says she can't put it through probate herself because she's not related to my grandmother. I am so I was wondering if I could probate my grandmother's will and enable my mother to probate my father's will and get some closure over his death?

    Thank you

    ReplyDelete
  61. Hi Lynne,
    I am wondering if my Father's Estate has to go through probate. He passed away recently and we thought we had matters organized but now aren't so sure.

    My Mother passed away years ago and my Father developed Alzheimer's. He gave my sister and I joint Power of Attorney and also made all his bank accounts and investment accounts joint with both of us. My sister and I are the only children and are named as the executors on my Father's will. The will states that everything be divided equally between the two of us.

    My Father's brother passed away in 2009 and named my father, myself and my sister as beneficiaries. He also named other cousins as well including two whom he requested a trust be set up for 10 years after his passing for them. This trust is forcing my Uncles' Estate to remain open for 10 years before final disbursement.

    My Uncle's Estate was large and a first disbursement was handed out in 2010. My father passed away on the 8th of September and I got a call on the 10th of September from an executor for my Uncles Estate saying that the clearance certificate had finally arrived but my father's 2nd disbursement would have to go to his Estate. I was also told my fathers' Estate would also have to remain open for six more years because of my Uncles will.

    I spoke to the lawyer who is handling my Uncles' Estate and explained that Dads' Estate probably wouldn't have to go through probate if this disbursement didn't go to his Estate. He enquired if we had everything in joint accounts. I told him yes and he advised that they would probably get us to sign an indemnity letter and then issue the disbursement equally to each of us.

    I was pleased with that, but now am wondering if I am truly out of the woods with probate. Dad had several GIC's that the investment company has already said can be easily transferred to us as they were all joint. The only problem I see are a couple of RRIFs.

    Dad had two RRIFs, one totalling about 18,000.00, the other about 6500.00. My sister and I are both named beneficiaries on them but I'm not sure if that matters with a RRIF.

    Could these RRIFs trigger probate? And if so, should we still get the lawyer to divide Dads share to us? I'm worried about not going through probate and then it coming back to bite us.

    Also, does it sound right that we need to keep Dad's Estate open until the end of the 10 year period for my Uncles' will? I understand that at the end of the 10 year period there will be a final distribution.

    Thank you in advance for your help. You don't even know it but your blog has helped me so many times since my parents declined and I so appreciate the guidance. Thank you.

    Donnette

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    Replies
    1. Hi Donnette,

      I don't see why your father's estate has to be kept open because of the trusts set up in your uncle's will. In fact, I don't even see why the uncle's estate is being kept open. Only the trusts themselves need to be open. You've said there is a 10-year trust. At the end of the 10-year trust, is the money being paid to your father's estate? If not, it has nothing to do with him.

      I'm not sure why you are so against applying for probate. The cost would be small, since the only asset you'd have to include is the inheritance from the uncle. The RRIFs would not be included because of the designated beneficiaries.

      Lynne

      Delete
  62. Hi Lynne,
    My uncle's will states that the trusts for my cousins are to be held by the trustees and for the 10 years the trustees can, at their discretion use some or all of the net income for the maintenance and benefit of the two beneficiaries. If either of those two beneficiaries dies before the end of the 10 year trust then whatever is left of their share becomes part of the estate and is redistributed to the remaining beneficiaries.

    I was told by the executor that the reason my uncle's estate had to remain open was because of the part about redistribution of their shares if either of the two trust beneficiaries died before the end of the 10 years.

    He also said that was why we'd have to keep my Dad's estate open, in case there was a final disbursement, which he stated there probably would be even if both trust beneficiaries survive because they are holding back provisions.

    Does that make more sense as to why the estates should remain open?

    I'm not against applying for probate, I was hoping to avoid it in order to keep things simple. I have been looking after my Dad's finances for years now, I've helped him with his investments,done his taxes and paid all his bills for a long time. I was planning on doing his last taxes myself and I know that probate isn't an easy thing to deal with so I was hoping to avoid it.

    Is it possible to apply for probate myself? I've been told that I should hire lawyers, accountants, etc. and not try to do anything myself.

    Thanks for clearing up the question about the RRIFs not being included as part of probate. I am wondering whether we should redeem the RRIFs now or if we should let them mature. One matures next year, the other the year after. Are the tax implications the same in both cases? I find the RRIF thing confusing and can't find any clear answers on it.

    Thank you for replying, your advice is very much appreciated.

    Donnette

    ReplyDelete
  63. I am from Nova Scotia. My brother passed away. He had a will and in it was a lobster license and gear worth about $200,000. It was left to me. He had no property and no money in any bank account. Does his estate need to be probated?

    ReplyDelete
  64. Hi there, I need some advice please. I have been appointed executor of a will of a friend who knew she was dying and got all her affairs properly in order. The only left to do was to disburse her two bank accounts. One account was held under a trust agreement which the bank took a position did not form part of the estate although the trust agreement clearly said that upon death the trust would collapse and be paid to the executor named. For expediency, I agreed to have the trust paid out to the three charity beneficiaries. The last remaining account is only $2,500. They are not willing to release this account to the executor and are saying that without probate the beneficiaries will have to consent to the funds being released to the executor. I don't understand this thinking. The deceased died 3 years ago, was divorced over 20 years ago, no children of the marriage and no family members have any interest in her estate, which is only $2,500. This has all been very frustrating to me. The bank has been very difficulty from the beginning and is to blame for this lengthy delay. If you can provide direction on where to go from here it would be appreciated. It doesn't make sense to go to court for a Grant of Probate on such a small amount.

    ReplyDelete
    Replies
    1. You're right that it doesn't make sense to get a grant of probate for such a small amount. Believe it or not, the bank is trying to do you a favour and provide you with an alternate method of getting the money out without getting probate.

      The process you describe is standard among banks. To understand the thinking, you must realize that a grant of probate is a court order that indemnifies a bank who pays out one person's bank account to another person. With a grant of probate, the court is telling the bank to go ahead and that the bank will not be sued if some other beneficiary pops out of the woodwork later. Now you're asking the bank to give you someone else's money without that legal protection. The signatures the bank is talking about would be on an indemnity form. It means that the people who would inherit the money agree that it may be paid to the executor.

      This may not have been explained to you at the bank. In my experience over the last 25 years, banks don't generally have anyone in the branch who is thoroughly familiar with estate procedures. They are not lawyers; they are bankers, and probate is not their primary focus.

      I hope this explanation will help you to understand what you are being asked to do, and why.

      Lynne

      Delete
  65. Dear Lynne. Thank you for your Blog . I think you are wonderful to help with so many questions from people . Can I take just a moment of your time to ask you. If a Lawyer Is holding funds or property in Trust as a Trustee.. but claims she isnt. How would I find this out even though I dont have documents to show its being held by a lawyer Trustee.. I will soon have to deal with probate .. but the lawyer will not admitt she is holding trust funds. Thank you Lynne.

    ReplyDelete
    Replies
    1. I find this to be a really strange question. I can't imagine why a lawyer holding trust funds would deny it. Now, I can understand a situation in which a lawyer says she cannot discuss someone's file with you because all lawyers are required to maintain confidentiality. Is this what happened?

      I assume that you are talking about funds held in trust for the deceased. You said that you will soon deal with probate. Once you have that grant of probate, you can write to the lawyer enclosing a copy of the grant and request that the lawyer turn over any and all assets belonging to the deceased. If she has trust funds that belong to the deceased, she will hand them over.

      If they are in trust for another reason, that's different. The funds may belong to more than one person, or they may be held as security for costs for litigation, or a dozen other things. At least once you have the grant of probate you will have the legal authority to speak on behalf of the deceased.

      I'm not sure how you are so positive that trust funds are being held if you have no documentation, but assuming you are correct, you can ask the law society of your province to intervene and speak to the lawyer. This should NOT be done before you obtain the probate, as the lawyer might well be refusing to speak to you only because you don't have that.

      Lynne

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  66. Dear Lynne,
    I am the executrix of my mother's estate who passed away in June. Her final CPP and OAS payments for June were direct deposited as usual to her account held in joint name with me and my sister. Do I need to include these payments as assets for probate purposes or are they exempt because they were direct deposited to a joint account? Thank you

    ReplyDelete
    Replies
    1. As the two payments you mentioned were part of her income, I would include them in the probate. It's not about which account received the funds, it's about why the funds were paid.

      Lynne

      Delete
  67. Hi lynne

    My mother recently passed away she had a will perpared by a lawyer and her only asset was a house that was purchase 5 years ago I am the only beneficiary named in the will and the home is my primary residence and I was wondering if I would have to go through probate

    ReplyDelete
    Replies
    1. I'm sorry to hear about your mother's passing. If your mother's house is in her name alone, you will have to go through probate to transfer it to you. Whether or not you live there is irrelevant.

      Lynne

      Delete
  68. Hi Lynne, My relative passed away, and the two witnesses have passed on as well. I can't seem to find an affidavit of execution. What do I do without it? Thanks.

    ReplyDelete
  69. My mother in law has removed my husband from her will and left everything to his brother. We have also heard she has already signed the house over to him Can we contest this when she dies?

    ReplyDelete
    Replies
    1. I replied to this question as a separate blog post. Here is the link: http://estatelawcanada.blogspot.ca/2013/11/your-mother-is-leaving-everything-to.html

      Lynne

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  70. Thank you for this blog. Here is a question I have not been able to find an answer to. I held ALL my late father's assets either jointly or was a beneficiary to. (House, bank accts, RRIF etc.). I am also the executor of his will. Very simply, everything was to be divided equally amongst my two brothers and myself. Which I did, and both brothers signed a Final Release of Executor. Now, two years later one of the brother's has applied to the Court for Orders for a Passing of Accounts and List of Assets. Can he ? It is my understanding there was no Estate. Of course, I did not need to apply for A Certificate of Appointment....???

    ReplyDelete
  71. Do you have to probate a will in order to get a clearance certificate from Canada Revenue agency. If so is that not a reason probate to reduce liablilty for the executor?

    ReplyDelete
    Replies
    1. You don't necessarily have to probate the will. The will document itself provides the named executor with the legal authority to deal with Canada Revenue Agency. If there is no will, they will require someone to be appointed as administrator by the court.

      Lynne

      Delete
  72. Hi there,

    My dad recently passed leaving my mother as survivor / benefactor. There is a will that states this. My mother was also named as exectutor with my aunt as a secondary. Several months before passing, dad drew up a letter stating that the wished to change the secondary from my aunt to my sister. This was never legally notarized or filed with a lawyer. My aunt lives in BC and my sister is in Regina where my dad resided. Mom is in the hospital and unable to act as executor. My aunt and my sister would like to honour my dad's wishes and have my sister to act as executor but how do you get legal recognition of a chance in will after the person has passed?

    ReplyDelete
    Replies
    1. It's possible that the letter could qualify as a hand-written will. This will depend on a couple of things:

      1. where your father lived - the provinces and territories that allow hand-written wills and codicils are AB, MB, NB, NL, ON, PQ, and SK.

      2. The letter doesn't have to be notarized or filed anywhere, but it does have to be 100% in your father's own handwriting, signed, and dated. It doesn't need witnesses.

      Also, read the will itself to ensure that it allows the alternate executor to act. Some wills, particularly the more old-fashioned ones, say that the alternate can take over if the first choice has died. Hopefully your Dad's will allows for the alternate to step in even though your mother is still alive.

      I would suggest that your sister take the will and the letter to an experienced lawyer to get an opinion on the validity of the letter as a codicil. My approach has always been that where there is a possibility that a document could be testamentary, it is best to apply to the court for probate. This means the court will decide whether the letter is a codicil or not.

      Best of luck,
      Lynne

      Delete
  73. Hi Lynne,
    My mother recently passed away. She was divorced before I was born (45yrs ago). I am the only child and I have 1 child. As my mother suffered a stroke 4yrs ago, we had to sell her house at which time she finally did a will. In the will it states that she appoints me to the be the trustee of this will and gives devise, bequeath and appoint all my estate of every kind and nature whatsoever to me.
    My question, as I have no siblings, do I need to probate? I thank you in advance for your response.

    ReplyDelete
    Replies
    1. I'm sorry to hear about your mother's passing. You may not have to apply for probate. It will depend on the type and value of her assets. You said that she no longer owns a house, so that is one of the big issues out of the way, in terms of needing probate. If your mother has significant bank accounts or investments, you may still have to apply for probate. Each bank seems to have its own dollar limit for requiring probate.

      If there is only one bank account and it is not particularly large, you may well be able to convince the bank to release it to you without probate if you sign an indemnity. It would seem that the risk is much lower for them in your case because you have no siblings.

      Lynne

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  74. My deceased husband's estate was worth $8400. My stepkids are saying NO WAY! They want to include the RRSP and Life Insurance with me as designated beneficiary. So my lawyer is going to show them the statement of assets and the statement proving that I am the beneficiary to RRSP and Life Insurance. So at that point will it be over. Or will we still do the discovery and rack up our lawyer bills even more. Apparantley their lawyer is notorious for stringing things along to fatten his wallet. So Lynne what do you think when the lawyer tells them that there is virtually nothing in the estate will this court battle continue. and if so why? What could they possibly have to say after they see the statement of assets. I don't know the process so I'm just wondering what they'll come up with next.

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  75. Dave Higgins
    My wife has an aunt who just passed away, she is executor on the will and sole beneficiary of a bank account with about $10,.000. Her aunt had no kids and credits cards etc. Does she need to go through probate ?

    ReplyDelete
    Replies
    1. If the only asset in the estate is the bank account you mentioned, then it is unlikely that it will be necessary for the will to go through probate. Most likely the bank would agree to accept a signed indemnity rather than an order of probate. If there are other assets though, that's a different story and probate would likely be needed.

      Lynne

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  76. My mother passed in 04 my oldest brother went to court to get the rights to act on ger behalf when she was alive in the hospital, a year later I sold my rights to her house , for 20,000 I got 13,000 but not the rest , they have since kept her house in her name abd making the mortgage payments the bank doesent know she passed they renewed her mortgage not sue how, the will is long gone , there waiting for a writ to come off the title is what im told , question is is the document I sign valid after 10 years does it expire ?
    Since there hiding her death and I wasnt totally paid out ? Nothing has been done he still lives in her house ?

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    Replies
    1. It sounds as if the court appointed your brother as guardian or trustee for your mother, and that he is still using that document to conduct business even though your mother has passed away. That is fraudulent and illegal. His authority to use that document ended as soon as your mother died. He could be in pretty big legal trouble over this. If he is the executor, he should be acting under the will, not the trusteeship.

      I have no idea what you mean by your rights to your mother's house or how you sold them. I can only assume that you decided to receive cash from the estate rather than to accept a portion of the title to the house. In theory, that was a good choice on your part.

      However, as long as this fraud continues, you are never going to receive the balance of your share. I don't know what the lien against the title is all about, but obviously your brother doesn't want anyone to know she has died because he wants the lien to expire first. It may not expire, who know? He is obviously carrying on without any legal advice (or not taking the advice he has been given) and probably doesn't know squat about how the lien actually works.

      He honestly sounds both arrogant and uninformed to me, which is a deadly combination. How you have had the patience to allow him to milk this estate, defraud the bank, and keep you waiting for an inheritance he is probably wasting daily, I will never know. I would have blown the whistle on him long ago, but that's maybe just me.

      I don't know what document you signed. Lord only knows whether it was valid in the first place, given how that slimy brother of yours operates. Assuming it was valid, it is not going to expire as he has recently acknowledged the debt to you.

      *shaking my head*
      Lynne

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    2. Who would I contact to turn him in . I have no idea who yo contact . I signed a agreement made out in a lawyers office that says I sold my rights to her house for the sum of 20,000 but only got 13000.00
      Question is since thry milking this system . And waiting fir this writ to come off so they can proceed without paying it out . The writ was filed by a guy who borrows private money she got sued and he placed this 50.000 against the title . Im wondering if the letter unsigned expires after so long . His money order was for 13000.00 so is that document valid or will it expire since he hasent done anything in 10 years ? I would love it to expire .

      Delete
  77. Hi my Mom's portfolio is held jointly now with my broth and I. Her bank's investment advisor assures us none of it will have to go to probate when she dies: her name is removed from the existing accounts and all assets are moved into two new ones (my brother and me) ..BUT.. My investment advisor says the gov't clamped down on this 'ploy' as of Jan/14 to stop children from avoiding probate in this fashion; it WILL go to probate and there ill be delay/cost .. unless she gets a seg fund / insurance policy with us as beneficiaries. Who is right?

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    Replies
    1. The effort to stop the adding of children's names to their parents' assets actually started in 2007, so this isn't brand new. The law states that any inter-generational asset like this is to be held in trust on the death of the parent, until a court can decide whether it is a "true" joint account. If names have been put on to avoid probate, it is not a "true" joint account and the money will become part of the estate. I am not in a position to advise as to whether a policy or seg fund or any other financial instrument is the right one for your Mom, but I agree that having your name and your brother's name on as joint owners is not the best idea.

      Lynne

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  78. Hi Lynne,
    I have a question. My mom & dad, both passed away several years ago. Both in the US. The wills have been probated. There is a piece of property in there names in Nova Scotia that we would like to sell. How do we do this? Is probate required in Canada?

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  79. Hi Lynne,
    My father passed away in 2001. My stepmother passed away last week. My father had two children, myself and my sister. My stepmother has one son. My stepmother had a stroke and was in a nursing home. Her son states that he has Power of Attorney. My sister and I have never been informed of any will existing when my father died, and we often wonder if we have any rights to the existing estate now that our stepmother has passed away. Please advise and thank you for your time.

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  80. Hello, my father is on my back about getting a will, My wife and I own property jointly and bank accounts jointly,we have both named each other as beneficiaries for our RSP's and we do not have any children.I understand these assets will pass on to the surviving spouse.My question is if we decide to prepare our wills with the help of an online service,do we need an affidavit of execution as well to probate a will?
    Thank you for your time.

    ReplyDelete
    Replies
    1. I'm with your father on this! You have a spouse and you have assets, therefore you should have a will.

      To answer your question, yes, you always need the Affidavit of Execution. When the first one of you and your wife passes away, it is unlikely that probate will be necessary. However, it will be needed when the second one of you goes. And it will be needed if you two pass away in a common accident.

      Lynne

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  81. Hello
    I'm the only one on the Title of the house I live in. I lived here for 10 years alone before marrying and am now with my husband for 11 years. Does he automatically own 1/2 of the house even though he is not on the Title?
    Thank you

    ReplyDelete
    Replies
    1. Hi. The answer to this question varies depending on which province you live in. It also depends on whether you are talking about ownership on divorce, or ownership if you pass away before he does. Want to give me a few more details?

      Lynne

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  82. My mother passed in 2004, my oldest brother is in charge of her when she was alive , she passed and he lives in her house , there is a writ of enforcement on title , my brother is waiting for this to expire before he probates the will, its been 10 years now and he must have renewed her mortgage , the bank is unaware of the passing , is there a time limit for the will to be probated, any fraud going on ? When she was alive . I sold my interest in the house for 20k it was a agreement to her house when she passes I was only paid 60% and never got the rest question can I legally sell my interest in her house before she even died ? And does that document I signed valid after 10 years since I was never paid in full ?. There isn't a will, but I went into bankruptcy couple years later and listed my brother who bought my part in the crediters for the amount I sold it for , since I sold something I didnt own yet . I still dont own it si 've everything is at a haunt not being probated . Do I still own the property I have no clue ehat my rights are ir what to do ?

    ReplyDelete
  83. What do I have to do if the executrix of my fathers will gives me a falsified copy of my father's will? I got the real copy from the lawyer stating that I was to inherit an item of my father's, but the executrix gave the item I was to receive to her own daughter and lied about it. Do I have to force her into probate?

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  84. Hello Lynne, My Father passed away and my step mother's lawyer sent a letter to the bank to find out how much money my Father had in a joint account with me and to wait for further instructions. Now the Bank froze the account and it will not let me touch the funds. What can I do? The Will is not valid as my Father married this woman after he made the will. In the meantime her lawyer still does not know if my Step mom will contest the joint account or not. Is it true that she has two years to contest the joint account? Thanks for your valuable response. What are my chances to win this lawsuit as being the survivor ship of the account. This account was joined with my Father when I was an adult and it says that I am the Beneficiary as my Father's intentions were to leave this money to me.

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    Replies
    1. Hi Lynne
      My mother passed away last July and left her house to me. I am also the estate executor, along with my sister. The will was submitted for probate in early January of this year, and we were told it would take about three months to process. About two weeks ago I put the house on the market for sale, and it sold about a week ago. We (my sister and I) were told by the real estate agent, and the lawyer he recommended I use, that the court would expedite the probate, if the house had a firm offer. My agent called the other day to say the courts are 'backed up' and I may have to take out a bridge mortgage (I went ahead and purchased another property) until the probate goes through. I am concerned that I have been mislead, and I may lose both the sale of my mother's home and the property I purchased in good faith. Am I in trouble? Will the court rush the probate through?

      Delete
    2. If the probate papers are simply left in the queue in a system that is backed up, it seems unlikely that they will be rushed. However, I wouldn't agree that you are in trouble. An option that I personally have used on a number of occasions is to approach a superior court judge in open court, explain the situation on behalf of the executor, and ask for an order granting probate. This isn't something you do every day or the court will get annoyed, but in an unusual circumstance such as yours, it can be done. Just be aware that this is not something you should do yourself; you should have your lawyer do it. This of course, will cost money, but it should ensure that the probate is granted quickly and that the sale transaction can go through. Talk to your lawyer to see if he/she agrees that this idea would be appropriate in your local court system.

      Lynne

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  85. Is probate necessary if the stock of the deceased has been rolled over to the spouse.(CRA Election) . even though it was not a jointly held asset. There are no other items in the estate that weren't jointly held.

    ReplyDelete
  86. Ask friends, family, acquaintances and other business owners if they know of a good business attorney. Word of mouth and reputation are great indicators of an attorney's competence.

    Estate Litigation Lawyers Sydney

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    Replies
    1. Khloe, I completely agree. Word of mouth is the best way to find a good lawyer. I always suggest that people try to ask friends or family who have been involved in something similar. For example, they may have found a lawyer who was fantastic at defending their Uncle Jim on his impaired driving charge, but that may not be helpful at all when someone really needs an estate lawyer.

      Lynne

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  87. My Mother in law has just passed in Alberta. All she had to her name was about $21,000 in the bank. She was in a nursing home and it was paid in full. Her only other expense was her phone bill which has been paid already and cancelled. The bank insists on probate. The executer told the family it would cost about $5000. Funeral was around $4500 for everything (church service, luncheon, etc). She is survived by 3 adult children who are to share equally according to the will. We are shocked a the possible cost of the probate! that sounds outrageous!

    ReplyDelete
    Replies
    1. I don't see this as a case in which probate is required, either by the nature of the assets, or by their value. There is an alternative to probating the will, which the bank may agree to. It would involve all of the beneficiaries to sign a letter of indemnity. In other words, if a creditor or someone popped out of the woodwork and claimed that they should have been paid before the bank released the money to you, the beneficiaries would indemnify the bank.

      The bank doesn't have to agree to this, but they often do. It's an appropriate method where there is just one asset in the estate and it is not large.

      I have worked with the banks in Alberta, and I know that many will accept this method if it is requested. If the banking officer you are dealing with does not know about the letter of indemnity, either ask to speak with the branch manager, or ask them to call their trust department (most major banks have trust companies attached to them).

      If the bank cannot be persuaded to use this method, and you must go through probate, there are some large costs involved. The court itself will charge between $100 and $200. If a lawyer is hired, just getting the probate should cost in the range of $2,500 + 1% of the estate.

      If you want to apply for probate without using a lawyer, pick up a copy of my Alberta Probate Kit, which has all of the forms you'll need.

      Lynne

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    2. Thank you for your response. The executor has managed to get the bank to waive probate and the beneficiaries will not have to sign a letter of indemnity. this is a good thing due to one of them being a full on alcoholic and has been unavailable since the funural

      Delete
  88. If I live in Ontario and want to draw up a will leaving my daughter any and all assets I have. I own land (buildings/houses) in Quebec do I have to take separate measure through a notary in Quebec to ensure she has no trouble acquiring it upon my death or can I just state the details in my will (I have the deed)?

    ReplyDelete
    Replies
    1. Quebec has a completely different legal system than the rest of Canada (theirs is civil law while the rest of the country uses a common law system). If a will in Quebec is drawn up by a notary, it will not be required to go through probate. However, if you are relying on a will from another province to transfer land in Quebec to a beneficiary, the will is going to have to go through the courts. I think your best bet would be to have wills drawn up in both provinces. It's essential to remember that both wills must make reference to each other so that they can both exist, and neither one revokes the other one.

      Lynne

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  89. I'm in Canada. Can you dispute an estate/will after you have signoff or is it too late then. I have good reason to believe that my brother scammed some of the money that our father left for us. Thanks, Sharon

    ReplyDelete
  90. Can a person probate a copy of a will that is not notarized? There is no original to be found.

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    Replies
    1. My answer was really long, so I made it into a new blog post dated June 5/14. Here is the link: http://estatelawcanada.blogspot.ca/2014/06/can-i-probate-copy-of-will-since-i-cant.html

      Lynne

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  91. My Mother named myself and my three siblings as executors of her will. Is there a specific form or manner in which my siblings can renounce their positions as executor so that I can apply for probate as the single executor and subsequently distribute the estate assets. Have ordered your book, which may answer this. Thanks...

    ReplyDelete
    Replies
    1. Yes, there is a specific form for renunciation. As you've said you've ordered my book (I assume the Alberta Probate Kit), you will find the form you need in it. Easy peasy.

      Lynne

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  92. My father at his death left a family corporation with assets in the stock market. Half of the shares belonged to my mother and the other half divided between my three siblings. My mother has died. Since the corporation continues, can her shares just go to the siblings according to her will or does this have to go to probate. We live in Ontario and she has a separate will specifically for the corporation. Thank you.

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  93. Hi Lynne,

    I'm in BC and my mother passed a few days ago. I was appointed as executor to her will (she did her own will using a will kit and had 2 witnesses sign).

    The thing is, other than a RRIF that my brother and I were named as beneficiaries, the only thing that is is her estate is around $1800 in a bank account (I am the joint account holder on her other 2 bank accounts, of which she had 3). She also owes around $10,000 on a line of credit and credit card, but I didn't sign as joint account holder on either of those debts (they originated a couple of years later).

    My question is, as the executor, how will I pay those debts owing, as well as her final tax return, if there is only $1,800 available in her estate? Also, if someone at the bank disputes the validity of the will, will I have to go through probate for this small amount of money?

    Thanks in advance,

    Mark

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    Replies
    1. Hi Mark, as you followed up this post with an email to me, I answered you on email :)

      Lynne

      Delete
  94. My husband is Canadian. I am American. We live on a Canadian border. My husband has maintained residence in Canada. We jointly own a house in the US. He pays taxes on the property. He has been diagnosed with terminal cancer. We have wills in the US leaving everything to our spouse. Does he need a Canadian will?

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  95. Hi Lynne, having purchased your Alberta Probate Kit and as I near the point of filing the application (hooray!), I notice that the revised NC27 has a spot for name, address and occupation below the Commissioner for Oaths signature. Is this supposed to be for the commissioner or for myself, being the executor. Sorry if this is a dumb question, but I want to get this right the first time through. Thanks!

    ReplyDelete
  96. I was recently named in a will as a beneficiary in the amount of $5,000. Will the probate take long for this? The lawyer's office and executor is under 50km away from me.

    ReplyDelete
    Replies
    1. Neither the amount of your inheritance nor the distance from the lawyer's office is relevant to how long the probate is going to take.

      The most time-consuming step is the work done by the executor and the lawyer at the beginning, as they gather information from banks, insurance companies, realtors etc to prepare the inventory and paperwork. The faster the executor gets on with it, and the simpler the estate assets, the quicker things will come together.

      Some estates take longer to prepare because of the type of assets, such as a business owned by the deceased, or real estate owned in another country or province. So even though the gift to you might be simple, it could be part of a more complex estate.

      Once the paperwork gets to the court, it normally takes about 3 weeks to process. It can take longer during the summer because people take vacations.

      Lynne

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    2. Re: I was recently named in a will....

      Thanks for the reply Lynne! :)

      Delete
  97. Dear Lynne,
    Thank you for a great on-line resource.

    My husband and his uncle are executors for my mother-in-law's will. She passed away recently and her will states that, after certain smaller bequests to the grandchildren are made, the balance of her estate (which is held in cash) be divided between her two sons. However one son declared bankruptcy two years ago, and she put all her bank accounts into joint tenancy with myself and my husband (her other son). The problem now is, do we have to probate the will? The bank accounts would normally automatically devolve to the other named holders. Can my husband (working with his uncle) simply pay off any outstanding debts of his mom's estate (funeral expenses, income taxes, etc.) then pay out the proceeds as per her will, or does he need to probate the will first? This is a fairly strange situation, I think.

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  98. Our mom pasted away 41\2 years ago, the lawyer as had our probate for 4 years now. He is not returning any of calls. And when he does he is very rude, and has the same excuse, the rules of changed again. What can we do? How do we our paper work back when he won't meet with us? Is there a place were we can report him? Please Help

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    Replies
    1. It's true that the rules governing probate have changed in a few provinces in the last four years, but that is not a reason for work to stop on your file.

      You are having very poor communication with this lawyer, and I suggest that you move your business to someone else. I think the problem is that your lawyer doesn't do very much probate work and he is stymied by the change in the rules. Any lawyer who does a lot of probate work is prepared in advance for changes (we all know well in advance when they are coming) and can process your file without delays. If you let me know which city you live in, I might be able to direct you to someone who knows what they are doing.

      As for getting your paperwork back, remember that the documentation belongs to the client, in this case the executor who hired the lawyer. Assuming that's you, you have the right to demand the return of all of your material, as well as material that has been added to the file such as title searches or correspondence.

      Be aware though, that the lawyer may try to bill you for whatever work he has done before he releases the file, and he is allowed to do that. However, I suggest it would take some kind of nerve to bill someone for work that was supposed to have been done four years ago but never was.

      Since he won't respond to your calls, write him a letter or email saying that you want the file back immediately. Call his assistant and arrange to go in and pick it up. If he won't meet with you, pick it up from his assistant (he or she cannot do this until the lawyer tells them to go ahead).

      If you feel that the lawyer is deserving of discipline for the way he has treated you as a client, then you can report him to the Law Society of his province (note, this is not the same as the Bar Association). You can find them online, then call if you like, but you will be required to submit your complaint in writing. I hate to say it, but sometimes this is the only way to light a fire under someone who just doesn't seem to want to do your work.

      Please let me know how it works out.

      Lynne

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  99. Hi Lynne,
    I have a very difficult question on probate and a will, On Tuesday morning my mother passed away, my mother and I have not talked for years, and I taken out of her will in July 2013, the estate from what I can gather has been left to my older brother and my younger brother, but of course have no way of knowing for sure as no one will tell me anything, sadly it was my deceased brothers wife who actually even told me my mother passed via facebook.
    My questions are, does her will actually need to be probated, do I as her child have any right to see the will even if my name has been left out of it?
    I would love to be able to afford to see a lawyer and not have to ask on a blog, but honestly could never afford to hire one, so don't think I could contest it, but it does bother me that I will never know anything.
    I also live in a different province then the one my mother lived in.

    ReplyDelete
  100. My husband passed away recently, he never told me that he made a will 6 years ago before his open hearth surgery and gave it to one of sons. Our house was jointly owned, but he severed it without my knowledge and left his half to his sons, is this legal? What can I do about it. Thank you.

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    Replies
    1. It is possible, and legal, for one joint owner to sever a joint tenancy. However, a matrimonial home is a special case. The provinces all have different rules with respect to how the title to a matrimonial home is dealt with when one spouse dies. The law in many places supersedes whatever may be said in a will. I recommend that you speak to a local lawyer in your province to find out what the rules are there. You may find that the law works in your favour automatically.

      Even if the rules governing matrimonial homes do not help you, as a spouse you are in a unique position with respect to your husband's estate. If losing half the house means that your husband did not make adequate provision for you, you have the right to request a larger portion of the estate. Note that this right arises automatically, but you have to deal with it quickly - normally within six months of probate.

      Please see a local lawyer as it's important that you know the law where you live.

      Lynne

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  101. I just have a question regarding how a will would be executed. My father's common law wife passed away last week and her daughter who is the power of attorney has been quite difficult to deal with. My father and her haven't been getting along at all and she has been making my Father's life very stressful. We live in Ontario and my question If she's been named the executor of the will (or if her husband is) can she deny my father his portion of assets he should be receiving? And can she refuse to give him a copy of the death certificate so he can't apply for his survivor benefits? My Step Mom has about $25,000 of life insurance but that is her only asset. Will her will have to be probated? How can my Dad be sure he gets his portion of the money?

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  102. My mother died a year ago june of 2013 and our family home was sold july 2014. How long does a lawyer have to complete and disperse of the inheritance on a non probaded will?

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    Replies
    1. Is the lawyer the executor? I ask this because disbursing the inheritance is not the job of the lawyer; it's the job of the executor. Whether or not the will is probated, the executor cannot pay the beneficiaries until all debts of the estate are paid. The executor may choose to wait until he receives a tax clearance certificate from Canada Revenue Agency, which could take up to a year. So, there really is no short answer to your question.

      Lynne

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