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.
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 signficant 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 behaf 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.
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.
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 signficant 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 behaf 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.
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.
ReplyDeleteI've replied to this question by creating a new blog post on Feb 29, 2012.
DeleteLynne
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?
DeleteSince 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.
DeleteIf 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
I am named in the will does that matter. (Dad has passed already)
ReplyDeleteThat'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"?
ReplyDeleteLynne
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.
DeleteI 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.
ReplyDeleteHi there,
ReplyDeleteGlad 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
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.
DeleteI 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.
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.
ReplyDeleteHi. 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
DeleteLynne
how much money in an estate would make it mandatory for probate?
ReplyDeleteHi Lynne
ReplyDeleteMy 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.
Hi there,
DeleteOften 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
Hi
ReplyDeleteI 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.
Hi there,
DeleteThere 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
Hello,
ReplyDeleteI 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.
Dear Lynne:
ReplyDeleteMy 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
I truly like to reading your post. Thank you so much for taking the time to share such a nice information.
ReplyDeleteprobate law NSW
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,
ReplyDeleteHi , 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
ReplyDeleteHi 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.?
ReplyDeleteI 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
DeleteLynne
Hi Lynne!
ReplyDeleteMy 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?
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.
DeleteThe 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
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)
ReplyDeleteThe 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.
DeleteLynne
Hi Lynne,
ReplyDeleteBoth 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.
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.
DeleteLynne
Thankyou Lynne,
DeleteProbate should be done by us,or a Lawyer?
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.
DeleteLynne
Perfect & thanks. Looks like hiring would be the way do go.Is it usually billed by percentage of the estate or flat rate?
DeleteLawyers generally charge by the hour. Trust companies will charge a percentage of the estate.
DeleteLynne
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?
ReplyDeleteI'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?
DeleteLynne
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?
ReplyDeleteMonique
No that isn't best, sorry. I answered this question in more detail in a new blog post on Feb 4, 2013.
DeleteLynne
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.
ReplyDeleteI'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.
DeleteThere 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
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
ReplyDeleteHi JB,
DeleteYes, 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
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
ReplyDeleteIf 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.
DeleteLynne
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
DeleteMy 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.
ReplyDeleteHi Ted,
DeleteTalk 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
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?
ReplyDeleteIf 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.
DeleteBe 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
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.
ReplyDeleteA 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?
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.
DeleteNow 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
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?
ReplyDeleteYes, I do. For a full answer and my reasons for this, check out a new blog post dated Feb 25, 2013.
DeleteLynne
Are capital gains taxes payable upon the sale of a vacant leased lot in a Manitoba Provincial Park?
ReplyDeleteThis is something you should ask an accountant.
DeleteLynne
Hello,
ReplyDeleteYour 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!
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
ReplyDeleteHi. 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.
DeleteI'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
Hi Lynne,
ReplyDeleteI 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.
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.
DeleteYou 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
Hi Lynne,
DeleteVery 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.
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?
DeleteLynne
Hi Lynne,
DeleteI 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!
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!
DeleteLynne
Re: April 4, 2013 at 7:14 AM.
DeleteThank you for your frank reply Lynne; I appreciate it.
Hi Lynne,
DeleteJust 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
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)
ReplyDeleteIs it true that she now has to go thru probate??
Hi Lynne,
ReplyDeleteMy 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,
Hi lynne
ReplyDeleteDoes 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.
If those words are missing, it does not invalidate a will.
DeleteLynne
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.
ReplyDeleteI'm sorry to hear about your father's illness. Your mother should be able to transfer the car without going through probate.
DeleteLynne
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!
ReplyDeleteHi 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.
ReplyDeleteIt 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?
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?
ReplyDeleteHi. I'm sorry to hear about your father's recent passing.
DeleteYou 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
Please advise how it is determined, in which Province your will must be probated.
ReplyDeleteIt'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.
DeleteLynne
Hi Lynne
ReplyDeleteIf 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?
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.
DeleteWho 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
Dear Lynne:
ReplyDeleteI'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.
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.
ReplyDeleteNo, 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.
DeleteThe 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
Thank you so much Lynne, that helps!
ReplyDeleteThe 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?
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.
DeleteIn 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.
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.
DeleteI 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.
DeleteLynne
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?
ReplyDeleteThanks this is an interesting read.
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?
ReplyDeleteThe power of attorney ceases immediately upon your father's death. You cannot use the power of attorney to transfer the house.
DeleteI 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
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