Wednesday, June 30, 2010

What are the executor's duties?


When I talk about executor's duties in this blog, I usually focus on one duty or one detail at a time. However, I think many executors out there would appreciate having an overview of their duties, either as a first-time checklist, or as a refresher of what they learned when they first began working on the estate. So here is a list of what an executor in Canada is supposed to do (note that an administrator appointed by the court has to do these things as well, though he or she cannot do them until they are appointed):



  • make arrangements for the disposition of the deceased's remains, as well as any arrangements for funeral, memorial service, etc.

  • find out the names and addresses of the beneficiaries and notify them of their interests in the estate.

  • list the contents of any safety deposit box owned by the deceased

  • make an inventory of all of the assets and debts of the deceased. Give all assets and liabilities a value as of the date of death.

  • check that property is insured. Advise the insurance company of the death. Place additional insurance if necessary.

  • secure any valuable estate property. Once smaller valuable items have been inventoried, put them somewhere safe where they can't be stolen or damaged.

  • arrange for protection and supervision of vacant land and buildings.

  • make arrangements for the proper management of estate assets. If there is a business or farm, make sure there is someone running it properly. Sell assets if appropriate.

  • apply for a Grant of Probate or Grant of Administration.

  • hire a lawyer to advise you on any complicated or unclear issues.

  • apply for all pensions, death benefits, life insurance or any other benefits that are payable to the deceased's estate.

  • if there is any jointly owned property, advise the other joint tenant of the deceased's death (notice that this list does not include you taking care of the transfer of title. The surviving joint tenant can do that).

  • if there are any life insurance policies, RRSPs or any other assets that name a beneficiary other than the estate, notify that beneficiary of the deceased's death.

  • pay all of the debts and expenses owed by the deceased and by the estate.

  • decide whether or not to advertise for creditors and claimants. If you choose to advertise, do so in accordance with the law. If there are claims, check them out for legitimacy. Pay legitimate claims from the estate.

  • determine how much tax the deceased owes. Have tax returns prepared and filed on time. Pay the taxes before paying beneficiaries. Get a Canada Revenue Agency tax clearance certificate.

  • if there is a lawsuit against the estate, hire a lawyer and run the lawsuit on behalf of the estate.

  • set up any trusts directed by the Will. Administer the trusts for the length of time and on the conditions set out in the Will.

  • answer enquiries from residuary beneficiaries, creditors and other stakeholders.

  • prepare executor's financial statements including a proposed compensation schedule and a proposed final distribution schedule.

  • distribute the deceased's property in accordance with the Will or with intestacy law.

As you can see, many items on this list are going to break down into smaller lists with several items of their own, but this should give you a general idea of what you'll be expected to do as an executor.

PLEASE NOTE: The maximum number of comments this system will allow is 200, and this post now has more than 200 comments. If you post here now, I won't be able to read or respond to your question. Please feel free to ask your question on any thread with less than 200 posts. 



207 comments:

  1. I am the executor to my father's estate. He was 100% shareholder in an incorporated business that was in effect defunct. There is no business or assets....however there are some small liabilities and taxes owing.

    What are my obligations? If I am the executor for his "personal" estate....does this mean I am also responsible for the corporation or is it a separate legal entity?

    Can Revenue Canada come after me for the remaining small debts (ie small loan and visa balance)?

    Thank You

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  2. I am one of three beneficiaries, two live in the same city, I have to travel with expenses to help clean up the estate, could my expenses come from the estate to help me out?

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  3. While it is certainly possible for necessary expenses incurred in the administration of the estate to be paid out of the estate, make sure you go about this the right way. Agree ahead of time with the executor on what work you will do and what is involved. For example, if you have to travel and stay in a hotel, make sure the executor knows that you expect this to be reimbursed, then do your part by keeping the expenses reasonable. If you are doing work for the estate, such as clearing the house, doing repairs, etc, agree on an hourly rate. Keep receipts and mileage records to give the executor so that he or she can keep proper accounts.

    Lynne

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  4. My stepmother made a will while she was terminally ill, and gave the residue of her estate to her niece.She changed her will 1 month prior to her death when her brother came to visit. My father remains the beneficiary of the rrsp, and joint ownership of their home. The executor is ignoring the designation of the rrsp, and the letter from the bank discounting the will as it does not refer to the rrsp. Can he still probate the will and ignoring the rrsp designation, and actually include the rrsp as part of the probate? There are no other assets other than a income tax return. He continues to insist that my father provide the balance of the rrsp. What can he do or not do in this regard?

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  5. If your father is the beneficiary of the RRSP, and the Will doesn't specifically name that RRSP with a beneficiary change, then I don't see how the executor considers the RRSP part of the estate. He can probate the will but if he includes the value of the RRSP in it he is doing nothing but bumping up the probate fee. It sounds as if the bank knows what's going on and won't release the money to him, even if he does try tricking them by listing the RRSP in the probate application (he wouldn't be the first to try it!). This is going to be hardest on your father, because he may end up just giving in to the demands just to get some peace and quiet. Is your brother using a lawyer to help him with probate? I ask that because it seems that he needs some basic interpretation of beneficiary designations.

    Lynne

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    Replies
    1. Lynne,

      We are a group of marketing students from Douglas College in British Columbia and are currently doing are practicum with Executor Support. Executor Support is a developing business that started in 2010 and currently runs out of Coquitlam, B.C. They are hoping to expand their business throughout Canada in the next few years and have assigned us to do some research for them.

      We were wondering if there were any legal issues that would prevent Executor Support from operating in Ontario. It has come to our attention that there may be some laws restricting who is able to legally execute a will on behalf of the executor. If there is anywhere we can find this information or someone else we can contact to retrieve this information that would be very helpful.

      Below is a link to their current website:

      http://executorsupport.ca/Contact.html
      Thank you for your time,
      Kevin Jackel
      Jillian Noort
      Radu Botoi

      Douglas College Marketing Management

      Delete
  6. I am the executor of a will and have monies in trust for a minor, which are to be handed over at the age of 21. Am I obliged to tell the legal guardians of this minor although it was the wishes of my mother (orally only) that the guardian be not told.

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  7. My family moved into my grandmothers home three years ago rent free. We moved all her belongings into the spare room and locked the door. She just passed a way and left my sisters and I as her executors. All of her estate goes to her children. Do I have to move, start paying rent or do I stay. I want to do what is right,any advice. Thanks

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  8. Thanks for asking this question about your grandmother's house. It's not easy being an executor, especially if it's for the first time. I don't have all the facts but I'll let you know what my thoughts are based on what you've told me. You've said that you aren't the beneficiary of the house under the Will, so at some point you're going to have to move. If you look at this house from an executor's point of view, you will realize that your job is to maximize that asset on behalf of the estate. One way executors can do that is by charging rent until the house is cleaned up and sold. If you're living there rent-free, you're preventing the estate for renting it out for profit.

    Lynne

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  9. my sister and i co executrix to our fathers will.she gets inheretince and i dont.can i be an executrix and contest the will at the same time?

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  10. Hi, thanks for the question. In theory, it's possible to be both executor and person attacking the will, in the sense that it's not illegal. But it would be pretty darn hard to actually do. Do you think you could handle both? You'd be on both sides of an argument. You and your sister likely wouldn't get along as executors, as her job would be to protect the estate. Perhaps you should talk to a lawyer about whether you actually have a decent claim against the estate before you make a decision about this.

    Best of luck,
    Lynne

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  11. I am the executor for my late husband. His will leaves everything to me. However, after his death I learned that he had at some point since drawing up his will designated as beneficiary of his RRSP our son who turned 18 several months before his father’s death. This is fact is where the bulk of our savings reside and is money I was counting on for my retirement. I understand there would be significant tax implications if my son were to inherit the money as opposed to it passing to me as spouse. The only other asset that would be part of the estate, i.e., not jointly owned, is a small tax free savings account with no beneficiary named. It is my understanding that at present the RRSP is not part of the estate because of the beneficiary designation. I have discussed the RRSP with my son who would be willing to renounce the money in favour of the estate. Is there a particular form for doing so? Should such a form or letter from my son be included as a document in the probate application?

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  12. Yes, there are tax implications - big ones - to leaving an RRSP to a child rather than a spouse. An RRSP left to a spouse can be rolled over with no immediate tax liability but this is not available when leaving it to a child (except in very limited circumstances). I don't believe that you are going to be able to get around the tax hit in this case, even if your son signs a form assigning the money to the estate. Talk to the manager of your bank or a certified financial planner to find out which form needs to be signed to re-direct a payment of proceeds.

    Lynne

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  13. A relative of ours, for whom my wife is one of three executors, just passed away. Most of the relative's assets were in an RRSP and small life insurance policy with named beneficiaries. There is a will, but there are also large credit card debts (approx. $45,000) and other unpaid expenses (utilities, etc.) including likely at least one year of back income tax. We expect the estate to be bankrupt. We are not a beneficiary but want to proceed correctly. Do all expenses need to be paid at the same time, or can the rent and utilities be fully paid, for example to keep the apartment for a month while family members take small keepsakes. Can family members simply purchase items (e.g., a car, large TV, new computer) from the estate for fair market value, or does everything need to go to auction? Thanks for any advice.

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  14. Hi Doug,
    To some extent, the powers of the executor are determined by the wording of the will (which of course I haven't seen), but I can tell you about the usual scenario where a will doesn't restrict anything.

    Generally the executor can, and does, sell estate assets to buyers for fair market value. Those purchasers can be the beneficiaries, or strangers. I would be careful about the executors themselves buying assets from the estate - an executor doing this should document the purchase in detail, make sure it really is bought at fair market value (no special deals!) and make sure that he or she has the consent of the other two executors.

    Before any specific item is sold, make sure that it is not left to anyone in the Will. I would also be careful about the idea you mentioned of having everyone come in to take small keepsakes. Nobody but the beneficiaries named in the will should be taking anything. The fact that someone is a family member doesn't give them any right to take anything. Sorry if that sounds harsh, but it's the legal reality.

    Can you imagine the fuss if creditors are unpaid and then find out that people who weren't even beneficiaries were given items that could have been sold at an auction or garage sale?

    Any money in the estate, together with any money raised in the sale of items, form the residue of the estate. The residuary beneficiaries of the estate will only get an inheritance if all debts and expenses are paid first.

    Normally debts are paid whenever funds become available, but that approach assumes that there will be enough to pay everyone eventually.

    Where there isn't enough to go around to pay everyone fully, think about making a list of debts and assets and working out an arrangement where creditors take a certain amount on the dollar in exchange for a full release of the estate. The object is to avoid litigation against the estate while being as fair as possible to those with legitimate claims.

    Best of luck with what sounds like a difficult situation.

    Lynne

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  15. Lynne,

    Your response to Doug mirrors my situation. My siblings and I were named as beneficiaries on my father's various RRIFs. Until the house is sold, there is no money left. Parment of income tax was substancial. As executor, I payed the whole amount to avoid further penalties. I assume I am allowed to deduct the income tax before distributions ?

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  16. Hi,

    Yes, normally an executor who pays an estate debt personally is reimbursed out of estate funds before beneficiaries are paid.

    Lynne

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  17. My 93-year-old mother wishes the bulk of her estate to be distributed before she dies. My sister is the power of attorney and my husband is the executor. The intent would be to reserve funds to take care of her needs until her death. What is the best way of going about this?

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  18. My husband passed away and my sister-law is executor what are her duties to me and can she withhold information about any thing I am the direct beneficiary of, such life insurance, investments etc.

    MARCH 15,2011

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  19. Hi,
    I'm sorry to hear about your husband's passing.

    I don't really have enough information to answer this question, but I can at least address some of the general issues.

    One thing I've noticed about beneficiaries is that they think unless the executor acts as their personal helper, the executor is withholding something. In the vast majority of cases, the beneficiaries are asking for something that they either aren't entitled to have, or simply doesn't exist. She doesn't work for you; she works for your husband's estate.

    Obviously you have some information, as you were able to name some of the items you expect to inherit.

    Keep in mind that the person inheriting specific assets as opposed to the residue of an estate is not entitled to see the will or any of the other court documents. You may be a residuary beneficiary in addition to the items you've listed, but your question doesn't say that.

    Another thing to keep in mind is that if you have been named as the beneficiary of a life insurance policy, the executor has no control over that, and will not be given any information by the insurance company. Her job is to let the insurance company know that your husband has passed away, and that's it. After that it's up to the insurance company to deal with you directly.

    As for her duties to you, that will depend on whether you are or are not a residuary beneficiary of the estate. If you'd like to learn more about what executor's duties are in general, please look around a bit more on this blog as I have made a couple of detailed posts about what executors are supposed to do on an estate.

    Best of luck,
    Lynne

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  20. Is there a standard rate for mileage, meals, etc that executors can claim when performing their executor duties?
    Are there guidelines as well regarding this?

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  21. Hi there,
    I don't know of any published, acknowledged guidelines for this. But one approach that I've taken many times with success is to apply rates that the provincial government pays to its employees for expenses. This will vary from one province to another, but is never an extravagant amount.

    Lynne

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  22. Hi Lynne, my brother passed away 2 and half years ago in Alberta and left farmland to be sold in his will. There are many beneficiary's. There have been offers placed 3 different times and all rejected by the executor. Offers were reasonable with the surrounding farmland in the area. Can the executor keep rejecting the offers? This is really the only thing that is left to distribute and how long does the executor have to complete the estate? Thanks

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  23. This is an interesting question, and I can give you some general information about executors and selling land. First of all, you have to know what the will says. It may give the executor full discretion to take as long as he likes to realize the estate (that's pretty much standard wording these days). To balance that, keep in mind the executor's year, a rule of thumb that says that an executor should have a full year to deal with an estate before the beneficiaries beging to pressure him. Obviously the executor in your case has exceeded that time. There are other things that I'd find interesting to know, such as whether the executor is gaining anything by the delay, such as continuing to live on the land. Has he had appraisals that lead him to believe the offers tendered are inadequate? Have the beneficiaries exerted pressure on the executor to get moving? Are all of the beneficiaries eager to sell the land? Has he given any reason for rejecting the offers? If there are no good reasons, eventually you and the other beneficiaries might have to use the courts to force a sale.

    Lynne

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  24. Hi Lynne,

    My dad past away a few years ago and I am the executor. My dad farmed with his brother, who also passed away. The farm was set up as a corporation with shares. My cousin wants to take over the farm. From everything that I read thesale of the shares will qaulfy under Capital Gains Excemtion. Do we have to pay estate taxes when we sell the shares or can the CGAE be transfered to my siblings and me? This makes a differnece what we will sell the shares at, I want the farm to continue and have no problem with my cousin getting a deal buying the shares from us aslong as we do not have to pay taxes?

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  25. It's not really clear to me who currently holds the farm corp shares that were your father's. If they are still in the name of your Dad's estate, that's a different case than if they have already been transferred to you personally. If you were my client seeing me in my office, I would ask this question about the GCE of an experienced tax accountant, so I suggest that would be your best course of action. By the way - good for you for finding out so much about your options before taking steps. I wish more executors did the same!

    Lynne

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  26. 14 years ago, my father died without making a will.
    There are four siblings, the youngest two of whom are the executors. They have only made one disbursement when I had a court action against them and only one accounting. They refuse to communicate with the two eldest beneficaries and there are no inventories of paintings, motor cars, coins and jewelley.
    I live in the UK hoping that they would honour their
    position but they refuse to communicate with me and my brother. Are they deemed negligent and what can I do to urge them to complete. My lawyers in Calgary have moved on so I am left with a summary but no idea how to get accounts passed etc. Why should I have to pay for them to act when they chose to be the executors?

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  27. What happens if the estate cannot pay the bills (Tax, Credit Card, landlord, etc..)?

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  28. My Grandmother passed away over a year ago, and nothing has been done as far as a funeral, burial (cremation)or addressing beneficiaries that I know my brother, cousin and myself were left a fair amount of monies. The "executrixs'" avoids any questions and does not acknowledge our concerns. What can be done legally regarding this situation. I have been told we need to find the will, its just to hard we will deal with it later. What are the beneficiaries rights and actions we can take?

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  29. Lynne I have a question which has been nagging me for a while. My elderly father lives alone in his house in Edmonton. My brother lives in Toronto and I live in Calgary. The house is dated (1960s) and is cluttered with furniture from my Grandmother plus paper and files from dabbling in the stock market. He has engaged a financial institution to act as Executor of his estate. How does an institutional Executor typically handle a cluttered house where the ppaper may be valuable? If it falls to me, will I be compensated? At what rate?

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  30. Re: grandmother passing away

    This is a very strange situation. You are talking about the executrix and the beneficiaries, but you don't even have the will? How do you even know who the executrix and beneficiaries are? Quite a few assumptions are being made. The will is the holy grail here - it not only names the executor but tells who is to get what from the estate, so yes it needs to be found. No wonder nothing has been done. If you find the will and the executrix still refuses to act, perhaps the will names an alternate.

    Lynne

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  31. Hi Lynne, I am one of several beneficiaries to my stepmother's Will. The executor is no longer responding to calls or emails. He has disbursed 2/3's of the monies - but there is a balance in the estate still to come. It's now two years since she passed. We dealt with neices and nephews contesting, settled on giving them 25%. In addition he is a nephew of the deceased (although he wasn't part of the challenge) and a CGA. What is our best recourse if he continues to avoid us? Do we report him or get a lawyer (again) to spur him into action? And lastly, can he charge the estate more than 5%?

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  32. I am Co-Executor of my parent’s estate. I come from a large family. One of my siblings (a residuary beneficiary) is insisting she see the Will, my Mother wanted to make multiple copies of the Will and give it to each child. I advised her it would not be a good idea to have several copies distributed all over the place. There is nothing to hide, but my concern is that if the Will is updated in the future, there could be conflicting copies complicating matters down the road. I suggested if my parents wish to share this information, it would be better to have a family meeting where everyone would have an opportunity to read the Will if they wish. Are there any concerns with this approach?

    Also another one of my siblings is pressuring my parents to be added on as Executor, she lives half way across the country. If she is added on as Executor, there could then be three, (or one may relinquish leaving two). Can the Will state that the Executor(s) not be entitled to any Executor fees or be reimbursement for expenses? Alternatively can a cap be identified in the Will to limit expenses of an Executor? Ultimately to protect the estate against the costs that could be incurred from managing the estate from a distance such as flights home when required to deal with matters not capable from such a distance?

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  33. Really interesting reads!My brother is the executor for our father's estate.He left us RIFF trust to each of his children (and commonlaw spouse) which is not considered part of the estate.There are potentially large taxes to pay on this plus other taxes.Who is responsible to pay?If there is not enough funds in the estate is the executor responsible for outstanding debts/taxes?He fears he may be made bankrupt from his personal savings.

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  34. My sister and I are executors of our fathers will. He had a pre-nup agreement signed by his then common law spouse (1994) and completed his will in 1996. He subsequently got married to his CL spouse in 1999 and wants to know if his pre-nup is still valid. He recently advised me that they re-did their wills in 2002 with her lawyer and I don't believe he got his own independant counsel. If there is something he specifically wants his grandson to have but hasn't mentioned it in his will I assume those assets would then form part of the estate.
    He also wanted to know who arranges the funeral etc and who pays for it? Is it the spouse or the executors. Keeping in mind, she has grown children as does my dad. However they recently changed the beneficiary on their separate investments...she changed hers to her kids and informed him that she was remaining the beneficiary on his. That doesn't seem fair. I would thinkk that they would either both be each others beneficiarys or both make their kids the beneficiary. They have separate investment accounts. He wants to discuss the will and pre-nup with me as he feels that as one of the executors, I should be made aware of what he wants and has asked for some input. I think he may be looking at updating the will as he hasn't been healthy but I'm not sure how far my involvement should be. I think the house that he has lived in since 1989 (prior to meeting his spouse) is still his name only and that is covered in the pre- nup. What are your thoughts on this situation and how much should I get involved as far as my opinions. I have read some of your postings and haven't come across much that relates to 2nd marriages with 2 separate families involved - I'm sure I just didn't read far enough. Thanks for any input you have.

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  35. My friend told me he made me a beneficiary in his will. His niece is Executrix. She told me she cannot tell me what my interest is and said the will is in probate and in the hands of the lawyer. I am unclear because it is my understanding that once a will is in probate, estate files are public view. I am suspecting she will not tell me because it is being contested. I have no clue what he left to me. All he told me was "It isn't very much." I do understand that settling a will that is in probate can take up to a year or longer if contested and that all beneficiaries (residual & other) must wait for the completion of probate. I am just curious why she wrote she cannot tell me the entitlement amount?

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  36. Hi Lynne:

    Thank you so much for your site! Our Dad passed away recently. He has had very little contact with everyone in his family, including my brothers and myself. He left a Will and instructions demanding that no announcements, obituaries, memorials, services or other written or commemorative events take place in his honour. Would advertising for creditors be excluded from that?

    In 2009 when he knew he was dying, he opened a Tax-Free Savings Account and listed the three of us as beneficiaries. Beyond the TFSA, there is only debt. He had no property, assets, chattels, investments, savings ... nothing. We've written letters to notify the appropriate authorities and agencies. We've requested a copy of his credit report, so we can also notify all his creditors. He was an alcoholic and had a problem with hoarding. This caused two of the trailer homes he'd lived in to be condemned and destroyed. All of his documents and possessions are gone; presumably taken to the dump. None of us have ever received a card or gift from our Dad and the TFSA is the first thing he ever seemed to want to do for us. Will the TFSA be paid to the beneficiaries or is it deposited into the trust account and paid out to creditors?

    Thank you again for everything, Lynne! I appreciate your time and any input you might have.

    All the best,

    Sam

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  37. Hi Sam,

    There are a couple of things to keep in mind here. First, any instructions given by a deceased with respect to dealing with his body after his death (and I would say that includes publishing notice of a funeral) are precatory, meaning wishes only. While most executors do try to honour a deceased's wishes with respect to disposition of the body, they don't legally have to.

    In my view, a notice to creditors is completely different from an obituary or other announcement in any event. The advertising is part of the administration of the estate and is within the discretion of the executor. You may know that advertising for creditors is not required in every estate; it's something that each executor must decide on. Part of the reason it's done is to protect the executor from the creditors.

    You have good reason for considering publishing a notice to creditors, and I don't believe it would contravene the spirit of what your Dad wanted.

    Lynne

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  38. Dear Lynne,
    My grandmother passed away five years ago and left her house to my sister and I. The property hasn't been transfered into our names and there is no reason why. My uncle, who is the executor received the rest of the estate but he is not receiving any benefit from the house. I discuss it with him frequently and he assures me every time that things will move ahead. When I talk to the lawyer for the estate she puts it off or tells me she doesn't have time to work on it. My uncle doesn't want to change lawyers. I don't have any money to offer to pay him for his time and expenses to help speed things up. We've explained to our uncle that we're struggling financially and tired because of the unnecessary delays. Is there anything we can do? Help!

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  39. My sister has passed and her daughter is executor of her will. My sister leaves behind a spouse (married 25+ years) (not the biological father of my niece). My sister had no assets in her name; only joint with her husband (house, cars).

    My niece is checking bank accounts, cancelling any and all bills in my sister's name - wouldn't that fall upon the surviving spouse? All bills (phone, cable, etc.) that are in my sister's name - is it not the responsibility of her living spouse to change that?

    What about tax returns? My sister's husband has indicated that he will not provide any information pertaining to tax issues to my niece. Is it my neice's responsibility as executor to make sure the taxes get done? Or the living spouse since all my sister's estate (pension, bank accounts) went to her living spouse?

    Is my niece doing to much? Once the funeral is done she can walk away since the living spouse is automatically responsible for any outstanding bills?

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  40. There are several questions in one here. I'm going to answer this question as a new blog post as I think it will be helpful to many readers.

    Lynne

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  41. I believe I have been placed in a precarious position as an by my law firm. Does a Final Release have to have an "Affidavit of Execution" affixed to it, in order for it to be legal and binding? I am an executor for an estate and in the process of getting the Final Releases finalized. The estate lawyer I have been seeking council from for quite some time has recently suffered a heart attack. The Final Release that was prepared by the new lawyer assigned to me was one sheet of paper and failed to have an "Affidavit of Execution" attached to it. The lawyer in Alberta informed my sister that the document could not have been done up by a lawyer and was not legal, and it was stamped "No legal advice given." The second document I returned to me was altered and the lawyer did up an "Affidavit of Execution" and affixed it to the Final Release. The lawyer from the law firm here in Saskatchewan stated to me that the document does not have to have an Affidavit of Execution attached to it. However, one sister has brought it my attention that the other sister now believes they have the right to appeal the signing of the Release. I have asked the lawyer at the law firm to redo the documents to ensure that I am protected as an executor before I send out the final cheques. The reason am seeking advise from a law firm and working with an estate lawyer is because one sister took on the estate with an outside lawyer. As an executor, I am concerned that a lawyer in Alberta has stated he believes that I did the Final Release up on my own, outside of a lawyer. I only want to make this right so that neither beneficiary can come back at me against the estate. I need closure. Please help!

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  42. Hi, Lynne. If an Interim Release and Approval of Accounts has already been signed by the beneficiaries, where the beneficiary in question had "independent legal advice" stated on the Interim Release and Approval of Accounts with signed "Affidavit of Execution," can an Executor still be forced to pass the accounts in court for this time period that the beneficiaires have already signed off? If so, why would any executor bother to do an Interim Release? Would we not just go straight to the court if Releases don't count? The beneficiary in question, in now claiming that she does not wish to sign a Final Release and the Interim that she signed 7 months ago, is not valid because she states she had a recent fall and now does not recall signing the previous Interim Release. This is going to incur further legal costs against the Estate in order to finalize it. At the same time, the other beneficiary, not in question, has ensured me that neither she nor I am entitled to any medical information about the beneficiary in question, but that this, in her believe is a game. I would very much appreciate your input on this subject. I hope to hear from you soon.

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  43. Hi Lynne, my mother died in Oct.2009 and left her estate to my brother, sister and myself. My brother is the trustee/executor. The home was sold in Feb 2010 and apparently all household belongings have been put into storage, costing approximately $300/month. With all the contents value added up they are not worth more than about $2000 if that. So my brother is paying $3600/year to keep belongings that will sell for less than $2000. My sister and I both gave him a letter saying he can have all the belongings we do not want them or the money from the sale of the items. My first question is: can he still charge the estate for the rental of the storage unit even though these items now belong to him as we do not want anything to do with the items or the cash from their sale? Second question: I do know about the executor's year and realize it is just a guide but our Mother has been dead for well over two years now. At what point do we ask his lawyer/the estate lawyer to get our brother to get moving on this. There has been no distributions of any funds at this point.
    Cheers

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  44. Hi Lynne. If a beneficiary attends a law firm in Alberta and signs a Final Release, then later retracts the Final Release on the basis that she may lack "mental capacity," and the law firm in Alberta sends the Court in Saskatchewan a letter, as well as, the law firm representing the Estate in Saskatchewan that the beneficiary may have lacked mental capacity, thus advices that we withdraw the document -- Can the beneficiary change her mind and sign another Release via another lawyer? This is the position I am in as an Executor. The beneficiary that may lack mental capacity had retained a lawyer previously and signed an Interim Release 7 months ago under the advice of that lawyer, as stated on the interim release. She is now trying to go back to the same lawyer to sign the Final Release, again. The lawyer representing the Estate has contacted the Public Trustees in Alberta. As well, the law fim in Alberta sent a copy of a letter stating the beneficiary may have lacked "mental capacity" to have signed the Final Release to all the lawyers involved and the Judicial Court in Saskatchewan. NOTE: no other beneficiary has a problem with the Estate, the releases, or the accounting. I am concerned if the beneficiary who may lack mental capacity signs another Final Release that the Public Trustees in Alberta might find her lacking mental capacity to make financial decisions after the fact -- meaning if she signs a second Final Release, I may be asked to send the cheque directly as advised by the Estate lawyer to the beneficiary whose capacity is in question. At the same time, I am concerned because the the law firm representing the Estate has contacted the Public Trustees in Alberta, that the Public Trustees might not investigate this case and it could come back at me because there are cases in Canada where a Judge has ordered the passing of accounts after beneficiaries have already signed a Release. I only wish to finalize the Estate even if it means passing the accounts through the court. I am acting under advice of a lawyer who has been temporarily assigned to me because my Estate lawyer had a heart attack. What is your best advice? Please Help! Stressed!

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  45. My husband's father past away at 92 while we were on vacation. My husband's son is the executor and is refusing to inform my husband as well as his sister of what is happening. My husband's 2 children are mad at their dad for not being in Canada when he died. I think this behavior is inappropriate. Does the executor have a legal responsibility to inform children of a deceased?

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  46. Hi Lynne. If a beneficiary retains a lawyer for legal advice regarding her part in the Estate, signs an Interim Release and approval of accounts under this lawyer's advice (where the lawyer wrote an entire paragraph stating the benficiary signed the document under his "independent legal advice," and then later the benficiary may be considered mentally incapable of making financial decisions, can the previously retained lawyer act on her behalf allowing her to sign a final release again? Note: (Beneficiary decided to go to a different lawyer and sign the final release and then withdraw it on the basis that she lacks "mental capacity" and does not agree with the Release; both lawyers the beneficiary saw do not act for the estate.) Then the beneficiary returned to the lawyer she had on retainer wanting to sign the final release again. --Can the Estate request conclusive medical proof that the beneficiary is in fact lacking "mental capacity" to make financial decisions?
    How does the executor ensure that the Estate cannot be sued? Also, can the executor apply to have the accounts passed at the Court House in this particular case? The Estate lawyer is advicing that we let the beneficiary's lawyer allow her to sign the final release again, even though I have indicated to him in writing that I wish to pass the accounts at the Court House. Also, there is another beneficiary involved, and she is being asked to sign another final release which advises her to seek legal advice, and another document added to the final release stating that they agree that I should not pass the accounts. You should also know that myself being the executor am physically disabled and I have not claimed any executor fee; I waived the entire amount. The beneficiary in question threatened me that if I took one cent in executor's fees, she would push this to court. I only want to finalize this estate in the best interests of everyone and get closure so that no one can come back against the estate and sue later on. I guarantee you that I have done nothing wrong in my duties as executor and my accounts are impeccable. I thank you, in advance, for your response. Stressed!

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  47. My sister is collecting AISH (assured disability for the severely handicapped) in Alberta as of 7 months after our mother's death. She was not dependent on mom prior to her demise. This sister was divorced from her common-in-law spouse 5 months prior to our mom's passing away. She has a custody agreement with her spouse as to when she has custody with the children. At that time when she separated from her spouse, she purchased a residence in Alberta, and she owns her property. She is now on an AISH disability, which this fact was kept from me until now. This sister decided she did not want to notify her AISH worker of the inheritance at the interim distribution for fear she would be cut off. She is required to accept an inheritance and report it to her AISH worker any change in assets and this includes and inheritance, according to the AISH booklet, and she is not allowed to refuse the inheritance according to AISH guidelines. Now, my other sister has asked that I appoint her to distribute the remaining estate funds so she can cover up this deception to AISH, so little sister does not have to be responsible for signing a final release and not report the assets/inheritance to AISH. My other sister has asked that I put her in the postion that she can send out the remaining estate funds without anyone signing a final release to cover little sister not informing her AISH worker of the estate funds she has already received and is still eligible to receive. I have advised the estate lawyer of this. I have advised the older sisterr that I cannot be a part of this deception and that the other sister shoud contact her AISH worker and her lawyer. At this point in time, it has been brought to my attention that the sister on AISH is avoiding the Alberta Public Trustees, her lawyer whom she previously retained, and AISH. My question is: If this gets to court, can the estate lawyer request that the costs for lawyers, auditing, and court costs come out of the beneficiary's share who is evading everyone, including AISH, if she is found to be mentally competent? My accounts are in excellent order. Thank you.

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  48. Dear Lynne, I am handling an estate where our mom passed away and there are two sisters who are beneficiaries. They both signed an interim release 8 months ago. They live outside of the province, but in Canada, thus the interim releases were brought to lawyers who are notary publics. This is the third accounting I have done for the beneficiaries, and the Will was probated. One sister has signed the final release with legal advice. The other sister also signed the final release, but later withdrew it on the basis she might lack mental capacity. She has now returned to a lawyer she previously retained who is stating that in medical reports he has seen over the past 20 years that she is entirely competent, in his opinion. If she signs the final release again, can she withdraw it a second time? How do I know that she will not come back against the estate and say she can't be held responsible for what she was signing? Is there a time period that a beneficiary can withdraw a release that she already signed? If she decides to claim at some point that she wasn't competent mentally to sign the release, can she sue against the estate after the fact? or Would the lawyer representing her, who states in writing that in his opinion she is competent, be held liable? She does not have anyone appointed as a trustee to act on her behalf. Or is the final release she has already signed legal and binding? if she can't prove that she lacked mental capacity when she signed it?

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  49. Good Morning Lynne,
    Is there a blog that would cover the questions in the messages immediately above? Specifically, no closure of an estate after all legal elements and tax clearance have been met or received. Our Executor will not communicate. We have received no final release forms. We have been told by the Executors lawyer that they will fight a passing of the accounts. They offered a summary accounting so we have waited for that for two months now. Nothing has been received and neither the Executor or the lawyer will advise us of what is happening. Is it now time to seek legal representation and have the Executor replaced? The Executor has taken three and a half years now and from day one has not communicated with us.
    Many thanks for your anticipated reply, Carol

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  50. Dear Lynne, Is the cost of "passing accounts" at the probate court covered out of the estate? Do I require a lawyer to "pass accounts'? I am in a position presently where I am unable to finalize the remaining residue of an estate because one beneficiary will not sign a final release. Yet, at the same time she took the first final release to a law firm, had signed it, and then a letter was sent to the judicial court here where the law firm questioned her mental capacity, and stated that she did not agree with the release. At present, my lawyer is suffering from a medical condition where he tells me that I have done everything right, but he does not have the energy to go to court. I am very distraught. Do I need another lawyer? or Can I "pass accounts" on my own paid for out of the remaining estate funds? Please help! Thank you. Extremely Stressed!

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  51. Hello Extremely Stressed,

    What a tale. Wow, where to start? First of all you need to light a fire under that lawyer you hired. I can understand someone's medical condition preventing them from doing the more physical aspects of his job, but he can't just leave you hanging like that. If he can't do the job he's been hired to do, he needs to call in help. Doesn't he have any partners or associates? If not, he should be calling on his close contacts in the community to get someone who can do the job for you. There just might be steam coming out of my ears right now.

    Doing the passing of accounts on your job would be tough. This is largely because passing of accounts are done in the superior courts where there a lot of procedural rules. For example, here in Alberta they are done in the Queen's Bench chambers, where all evidence has to be given in affidavit form. If you don't know the rules, you're at a disadvantage. Some judges will take very good care of you as an unrepresented litigant, but that's not really their job.

    Another reason for needing a lawyer is that there is going to have to be legal argument on the issue of whether that release is valid. It's really hard for non-lawyers to navigate the system successfully when there are issues of law and fact to be figured out.

    If you are the executor, and I presume that you are, then yes the cost of the passing of accounts can be taken out of the estate. This is the main reason that no beneficiaries get their funds until ALL have signed; you don't know if some funds will be needed for further legal fees. This is another thing that a lawyer would do for you - request costs at the end of the hearing to indemnify you to the extent possible from the estate.

    I hope this gets resolved. I hate to see executors having such a tough time when they are trying to do a good job.

    Lynne

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    1. Dear Lynne: Thank you for your reply. I did light a fire under another lawyer in the firm, who has been in contact with the first lawyer representing me. If I don't receive the final release signed by the beneficiary from her lawyer by the end of this week, the new lawyer is going to prepare the paperwork and help me to pass accounts at the court.

      Even though the beneficiaries both signed an Interim Release and Approval of Accounts previously, when all else fails, it is nice to know that an executor can pass accounts to indemnify herself, paid for out of the remaining estate funds.

      I am so glad I took the public accountant's advice and held back some of the estate funds while awaiting the final Clearance Certificate, just in case there were additional taxes owing. Thank God! -- because these remaining funds can now help me to pay legal fees to pass the accounts.

      I made a mistake, though, when I waived all my executor's fees on the Interim Release. I had only planned to take fees if I had to pay for something out of my pocket like a marker, etc. Mom wanted her Will to be fair, and I tried so very hard to make it so, with NO executor's fees for me and an equal share to all of us 3 beneficaries. I don't think this is fair to me because I am not only the executor but also a beneficiary who is going to suffer additonal costs to pass accounts. I do hope, though, "passing accounts" brings some much needed closure for all.

      I have been waiting over 3 months now since the first final releases were sent out to the beneficiaries. It is too bad that releases already signed by beneficiaires do not protect the executor, even when they are signed under the "independent legal advice" of a lawyer, thus defeating the purpose of having a release in the first place. What good are having releases signed if an executor has to go to court to pass the accounts anyway? I would NEVER do this to my children.

      Extremely Stressed!

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  52. Lynne,
    My parents passed away 5 years ago 15 days apart. Myself and my sister in law are executors.Although a fairly straight forward estate it did take some time to sort out since they died so close together. We got probate papers, and settled what we could, then my husband died. The other 8 children were fine with things having a small delay and as soon as we got going again, 5 of them got a lawyer and started complaining about things. Essentially everything is done and we are waiting to make the dispursements but the 5 won't sign releases. We have instructed the estate lawyer to go to court to get it done but she postpones things a lot. If they actually had anything to complain about I'm sure we would have been taken to court, but we have just been waiting these last 2 1/2 years because of their lawyer. I had my daughter stay at the farm to look after things, they think she should have paid rent. I paid many expenses out of my pocket and did not claim them and I stated I wouldn't take my executrix fees if they didn't contest. My understanding is we as executrix can take care of things as best as we deem needed. The location the farm was at and insurance costs etc. made more sense to have someone stay there for security reasons. Could we have hired a property management company to look after it? They are racking up lawyer fees and all the beneficiaries have to pay for that. IT just isn't fair. If the estate lawyer continues to stall can she be removed and what complications will arise if we do that. We don't want this to drag on any longer! I might mention that my mother died last but is not the mother of my sisters contesting. Even though the state in split equally nine ways (and it isn't a large pay out) I think they are mad it is MY mothers estate and one of them was taken off as executor by my parents years ago because they didn't trust her.

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  53. My mom passed away july 2011..my estranged brother is the executor..I have not heard any about her estate ..how can I find out what is in the will..thanks

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    1. You have a couple of options here. My comments here are based on the assumption that you are in fact a beneficiary of the estate. If you are not a residuary beneficiary, you are not entitled to know anything. Not having seen the will, at this point you may not know whether you are a beneficiary or not. If you're not, your brother doesn't have to tell you anything, but common courtesy would make him simply respond that you.re not a beneficiary.

      In most places in Canada, someone who will inherit under an estate must be sent a registered letter telling him or her about what is to be inherited.

      One option is to hire a lawyer to write to your brother on your behalf with a request for a copy of the will. Having a neutral party might be easier for both of you.

      Another option is to go to the courthouse and get a copy of the will. This will only work if the will has been sent to the court for probate. Since your mom's death was almost a year ago, it should certainly have been filed by now if it's going to be filed at al. To get a copy of the probate, you will need your mom's full name. You will also need to know where it's filed, i.e. which town or district.

      Lynne

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  54. I have a question regarding my mothers will. My mom and I both own a house, we have lived in it together for 23 years. My mom is a widower and can't afford to do a lot around the house, my be in a position I looked after the big ticket items, ie, new windows,hardwood, new furnace, flooring and the list goes on.She passed away Dec 2010, her will stated that her half be split between the 5 siblings, but she did tell me and my sister who is the executor that I can stay in the house as long as i don't sell it, if I was to sell them her half would be split 5 ways, to which I had no problem with it.Well the executor disregarding mom's wishes even though they were not in writing. We have agreed to disagree in selling the house. We tried selling the house in 2011 with no luck, so sister said lets try next spring, I would have had kept on trying to sell it. Its on the market now, with not much action, we have dropped price twice and she wants to do it again, I said that I am not willing to another price drop at this time. She the tells me I am going to have to pay rent to stay there, half the house is mine, I have fully cooperated in trying to sell this, she is now threatening legal action against me. I have taken care of this house since my mom's passing to keep it in sale-able condition. I asked when the house is sold that the estate pays half of the cost to keep the house running mom and I always shared these costs, ie Property taxes to which moms name is still on the tax role, hydro, gas, alarm system to protect house when I am away. What are my legal rights in this matter ??. I am thinking about speaking with a lawyer on this, but I am trying to be co-operative as possible. When we were discussing this my sister the executor blurted out that some of them are financially struggling, that should have told me then that she was not interested helping me with some of the incurred cost to up keep the house and some other renos to aid in the sale of the house. I await your response.

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    1. Sorry to hear that this has gotten so out of control. I keep preaching to parents not to put all their kids' names on one title, but it keeps happening anyway. If your mom had any legal advice when this will was drawn up, it wasn't very good advice.

      I think you are right to consult a lawyer. Talking to a lawyer doesn't mean that you're not being co-operative.

      As for your mother's verbal instructions about you staying in the house, they aren't a lot of good to you legally. It almost sounds as if she wanted to hold the house in trust for you, but that could only be done in writing.

      As the house isn't selling, have you considered buying the other half of the house yourself? At the new, dropped price of course. That way you get to keep your home and enjoy the improvements you made, you'll get rid of the other names on the title, and the estate can be finished up.

      Lynne

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  55. What if you have an administrator forging documents that the beneficiary has filled out & trying to claim 50k left to the beneficiary as her own. She also has never provide the beneficiary with his own copies of any & all documents including receipts pertaining to the estate. It was all settled a year ago. She also acts like she owns our house when have already begun to have the mortgage transferred to our names, our mortgage lady said the house is ours. She enters the house with out or permission just to snoop around. She even put for sale sign in front of our house, we do not need to sell the house to pay debts. Only the bank can say we have to sell the house. We have told her we are about to press charges is she does not comply with her duties as administrator, & act with in the best interest of the estate & the beneficiary. Based on what I've told you would you say we have a sufficient case against her?

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    1. What a mess! To be honest, what you've told me doesn't really hang together. You refer to the house as "our house" and then said you have "begun to have the mortgage transferred". In other words, nothing's in your name. The mortgage isn't the point - who has the title to the house? It's the title that determines whose house it is. And why are you taking legal advice from a mortgage officer? If you want to know if the house is yours, take the documents to a lawyer, not a banker, or a dentist, or a chef or a mechanic. If the title isn't in your name, and is in the name of the estate, then the estate administrator has both a right and an obligation to enter the home and "snoop around". And you'd be the one with no right to be there. On the other hand, if it is legally your house, change the locks. And let's be clear here, just because you are beneficiaries of someone's estate, you don't automatically own the house or anything else. The administrator still needs to go through legal steps to change ownership. You seem pretty confused on what's going on here, so if I were you I'd take every scrap of paper relating to the estate to a lawyer and ask for a) information about how estates work in general and b) advice as to what you own and what you don't own.

      Lynne

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  56. my brother in law passed away and his sister is the executor. At the time he died he lived with his parents and has for the last 12yron and off but the last 3 years fully. His wife stays in the home he purchased soley and has paid for nothing in the marriage ever. They had a prenup saying he owns it all. My sister n law needs to go in the house to make note of all assets as the debt is high the wife wont let her on the property even though shes the executor. The house has been willed to the wife but has not passed can it be sold to cover estate debt my sister in law is still paying for everything as the wife still lives free. The wife wants everything else sold and her willed items not sold just everyone else s and she is not even the executor to the will.She also feels she did not get enough out of the will and is suing saying she is entitled to 50% of everything, she has never paid a dime even her own life and car insurance was pd by my brother in law and now she thinks she should have more than he left her as well they were not even living together because he was ill and she would not care for him so his mother had too.

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  57. Dear Ms. Butler,
    I have been reading through the blog, but there is so much, I can't get through it all, so my question may be repeated.
    I am working with my father on his will, and I am his only child, in a family of 9 other half-siblings and a foster child, who he has consented to give his name to.
    Here's the question, he has asked me to be the Executrix and give all monies (in bank, pension and RRSPs) to his wife, my mother, and all other items are to be given to me to do with as I please, which includes a coin collection. First, can I be both the Executrix and partial beneficiary, and Secondly, does the coin collection count as monies to be given to our mother?

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    1. Hi there,
      Yes, it's absolutely fine to be both executrix and beneficiary. There is no conflict there and it's actually pretty common in families.

      I'm glad to hear that you and your Dad are working together to make sure his plans are clear. This gives him the chance to describe and explain things the way that he wants and needs to.

      Generally a collection, even one of coins, is considered a household or personal item and not "money". But as your father has the chance to be specific in his will, he can specifically mention how he wants the coin collection dealt with.

      Lynne

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  58. My father died 6 years ago and was the executor of my Uncles will. Recently my uncle died and I have been asked to hand over the death certificate of my father by his 2nd wife so she can deal with the banking. They had separate accounts and she is unable to access this information without this cert. I am the executor of my fathers will and I would like to know if I should look into this farther. She is not an executor and am I now responsible for being executor of my uncles will. Thanks

    Randy

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    1. Hi Randy,
      It would be worth a call or visit to the bank to see why they want your father's death certificate if his banking was separate from his second wife's banking. Normally a death certificate would only be required if there were joint owners and one died. Otherwise, I don't see what your father's death has to do with her banking. As your father's executor, you should understand the situation.

      Re your uncle: does his will name an alternate executor to act if your father passed away first? If so, that person is your uncle's executor. You wouldn't automatically become his executor unless he died before your father, and your father was acting as your uncle's executor.

      Best of luck with this. It sounds like you have it under control.

      Lynne

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  59. Hello,

    Once the succession is closed, are the beneficiaries still liable for a department store credit card debt that:

    a)only recently arrived from a collection agency

    b)dates back to 2001

    Are there statutes of limitations?

    Thank you for your help.

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    1. Hi,
      The beneficiaries were never responsible for that debt. If anyone might be on the hook, it would be the executor who paid out the estate before all debts were paid.

      The usual statute of limitations on a debt is 6 years from the time the debt was incurred, or the last time the debt was acknowledged by the debtor.

      Lynne

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  60. Hi Lynne:
    I am son to a father that left us at an early age. He had very little to do with me over the years and only ever paid the small court required child support until I turned 18. He was remarried and never had more kids (that I am aware of). He passed away suddenly while I was in my 20's and I received no information or contact regarding his will. As a son would I not be entitled to see his will and if his death happened say 20years ago and his wife is still alive today would/could I do anything now? Thanks.

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    1. Hi. Im making a new blog post on Sept 24 2012 addressing your question, so please look for it there.

      Lynne

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  61. Dear Lynne,

    My brother passed away 16 months ago, leaving his business and a relatively large estate with 5 beneficiaries. Another one of my brother is the executor and is also a beneficiary. Communication has been really sparse but now that the executor's year has passed, the other beneficiaries are starting to wonder when the estate will be settled. From the information I have gathered, it appears the executor is making decisions that indicate he intends on continuing to operate the business and is in no rush to settle the estate. Probate has been granted, some assets liquidated early on but now it seems nothing is happening. What can we do? Is there a way to force the executor to realize the estate in a timely manner or can he operate the business as long as he wants to?

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  62. dear lynn,

    my husbands father is in palliative care and will pass away. currently my husbands brother is living in his fathers house, paying nothing, living off his fathers money. once my husbands father dies, will his brother be forced to immediately move out for sale of the home? My husband and his brother are sole beneficiaries of everything, and my husband is worried that it will be difficult to get his brother out of the house. My husbands uncle is the executor, so he would be in charge of taking care of this? Not my husband and his brother correct?.

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    1. Hi. I'm sorry to hear about your father-in-law. Having seen both of my parents through the palliative care stage, I can certainly sympathize.

      You're right that the executor will be the person in charge of taking care of the house.

      A lot is going to depend on what exactly the will says. On occasion, a person will say in the will that someone living with them has a certain amount of time before they have to move out. That's still pretty rare, but it's something that could come into effect.

      Also, it's possible that the house won't be sold, if the will allows the executor to have some discretion in how the two shares are determined, and assuming there are other assets. Say for example the house is worth $200K and there are other assets worth at least $200K. Maybe your husband and his brother would decide that one could have the house and the other the cash. Again, it depends on what's in the will, and how the executor decides to go about things.

      If the brothers end up disputing the house, most likely the executor will just put it up for sale and evict the brother.

      Sometimes it's really, really tough to get someone out of a house in this situation. I've seen it before. It can be so very hard to call the authorities to physically remove someone when you're related to them and you've all just lost a loved one. But at the end of the day, that person is choosing to cause the problem so you won't have much choice.

      Let's hope it doesn't get to that point. As your father-in-law is in palliative care, your brother-in-law should be making plans now for alternate accomodations, or at least preparing to pay rent to the estate until the house is sold.

      Lynne

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  63. If a will says a house or a RRSP go's to one person does the executor take a fee from the value of the items

    Thank you

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    1. Hi. No. The executor takes a fee based on the value of the estate as a whole. The value of the estate is calculated using the inventory that the executor prepares. As for the RRSP, if it is going to a specific person, it's not even part of the estate so the executor won't include it in the inventory and it won't have any effect on his fee.

      Lynne

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  64. Hello can an executor charge fees before the person passes away if that person is in charge of the living will. Also does the executor have to follow the will to the tee for the funeral arrangements

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    1. I repllied to this question by way of a new blog post dated November 7 2012.

      Lynne

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  65. What are the duties of an executor to the creditors of an estate? I am owed a significant amount of money for a well documented loan I made to the deceased. I have asked the executor for a listing of the assets and liabilities of the estate, but they seem to be stalling me. It has been almost a year and I do not know if I will be paid back. I do know that other creditors have been paid in full.

    Help?

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  66. Hi Lynne
    My mom passed away in October 2009 My sister and I were the the sole beneficiaries of her estate. In July 2010 we spoke to the lawyer involved with this matter. My cousin was made executor of the estate and we feel he has not relinquished a full accounting of the estate as I learned recently my moms bank account is still active and we have not received all due us as there is still an outstanding balance owed to us. Everything was done too fast and the shoddy paper work we received does not indicate her account balance or bank record. What can we do to get the proper documents as we have asked and received no response.

    Beau

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  67. Hi there,

    I am hoping this comment will reach you!

    I'll start at the beginning: I am the youngest of 3 children (all in our 30's). My two older brothers had lived (rent and bill free) at my father's house for 6 months before he passed away. It has now been 3 months since he has passed away and they are both still living there rent free. The oldest is the executor, I should mention - and the will states that all assets are to be sold and split between the 3 of us.

    They still have not switched over ANY bills or accounts. The phone, cable, internet are a few that are still coming out of the Estate, that I believe shouldn't be. Is this true? Do they legally need to have those bills cut off or transferred into one of their names? As well, are they expected to pay rent? I only ask about rent as this was brought up by the lawyer at our first meeting, but no further mention of it has been made.

    Furthermore, the other son (not the executor) is planning on having his girlfriend and 3 children move into the house as well in the next month.

    I don't think any bills other then hydro (as it necessary to have hydro on to run the furnace in Winter, but the bill is still double it would be if they weren't living there.

    Please help!

    Thank you,
    Sophia

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    Replies
    1. Hi Sophia,
      The brother named as executor appears to be totally ignoring his legal responsibilities because he is profiting by that. These are not estate expenses and yes, they should be paying rent and bills. By now he should have applied for and received probate and put the house on the market. THere is no reason in the world for you to put up with this. You will probably have to have your lawyer force it through court.

      Lynne

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  68. hi there. my sisters and i along with my uncle were left my gandmothers house. can he legally keep us out of the house unless he is there? He is the executor and says that the insurance company will not let us in unless he is there

    ReplyDelete
    Replies
    1. I've never heard of an insurance company insisting on anything like that. I honestly doubt that is the case.

      Is there a reason you need to go into the house? Understand that being left the title to a house doesn't mean you have been left the contents of the house. The executor is responsible for all items of the estate, including household items.

      Lynne

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  69. Hello Lynne;

    I am unsure of how to seek any assets left to me by a deceased grandparent.

    The deceased grandparents are not my biological grandparents, but the parents of my step-mother.

    My grandfather passed away about eight years ago, and there was never any mention of his will. My grandmother just passed away at the beginning of this December of 2012.

    Before she passed, she told during a conversation about money, that the money troubles of myself and my siblings, would be over after she passed away.

    However, I am estranged from my father and step-mother, and much of my family. I have not yet even though a month has now passed since my grandmother died, and eight years since my grandfather passed away, been informed of any assets left to myself.

    My other siblings also have not been advised of any assets left to us. I and two of my siblings suspect that my step-mother intends to keep us from our share of any inheritance, for her to provide it to our youngest sibling, who is her biological son.

    I do not have much in the way of resources or supports to find out how to obtain anything left for myself, or my other siblings.

    Can you advise of any means I might be able to access the legal wills of my grandparents?

    Thank you.
    Brian W.

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    Replies
    1. Hi Brian,

      I'm sorry to hear about your grandmother's recent passing.

      I don't find it odd that nothing was heard about your grandfather's will. If matters are set up properly between a husband and wife, there is usually no need for probate or other court involvement when the first one of them passes away. This could be the case with your grandparents.

      Your grandmother's estate is another matter. If you were named in your grandmother's will, you should hear something shortly. Keep in mind that having a month go by is not that unusual. Most wills have a clause that says beneficiaries must survive them by 30 days, so they are not even allowed to apply for probate until 30 days have passed.

      If you're not a beneficiary of the will, you won't receive any notice or anything. However, I certainly understand your reluctance to take someone's word for it when it's a person you don't trust.

      Do you know for sure that your grandmother left a will? Do you know for sure that your step-mother is the executor? I assume that you are going on what your grandmother told you and that your step-mother has not confirmed if there is a will or if she is the executor.

      I suggest that you start by writing a letter to your step-mother. I'm talking about a brief, formal letter that simply says you were informed by your grandmother that you would be a beneficiary of the estate and you want information about the estate. You and your siblings can go in together on this if you want to. Make sure the letter is dated, and even send it registered mail if you want to. The idea is to create proof that you asked for information in case this ends up in court.

      Another alternative is to ask a lawyer to write that letter for you. But since you don't really even know for sure that your step-mother is the executor, that might be a waste of money.

      Something else you can do is to go to the courthouse nearest where your grandmother lived and do a search there. You'd be searching for an application for probate, to see whether your step-mother or anyone else has filed the paperwork without telling you. A search is cheap - under $20.

      Lynne

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  70. Hi Lynne,

    Is there a time limit that an executor has to complete all of the duties? If so, how long do they have?

    Thanks
    RW

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    Replies
    1. Hi RW.
      There is no deadline that is set for all estates, mostly because they are all so different from each other. However, most estates can be - and should be - wound up within a year unless there is a lawsuit or there are very complex issues involved. Even then, it's possible that the final clearance certificate won't be received within that year.

      Lynne

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  71. Dear Lynne, Over 1 year later, and I am still trying to pass accounts at a Saskatchewan court. I am the executor and also a beneficiary. There are 2 other beneficiaries. Both beneficiaries signed interim releases over 1 and 1/2 years ago. There was hardly anything remaining in the accounting, and all that was necessary was receipt of the final clearance certificate.

    Following receipt of the final clearance certificate, which was in mid November, 2011, the estate lawyer prepared the final releases. Both beneficiaries signed a final release, and then a week later one of the beneficiaries withdrew the release and then consulted another lawyer.

    One year later, here we are. The unhappy beneficiary consulted a lawyer in January, 2012, and then held up this estate 3 months. Then all communications by both her and her lawyer had ceased with the estate and its lawyer, and neither the estate or its lawyer were informed what the problem was.

    I waited another month while the estate lawyer made several attempts to consult her lawyer to no avail. Finally, the paperwork to pass the accounts was sent out to the beneficiaries and filed with the court the first week of June, 2012.

    The court appointment date was finally set for mid November, 2012. The unhappy beneficiary showed up and told the court registrar that her previous lawyer had withdrawn his services and had not bothered to share any info with her at all regarding the estate.

    The court registrar then gave her time to consult with a new lawyer. Three weeks later, we heard nothing, so the estate lawyer wrote her lawyer a letter. Six weeks later the beneficiary's lawyer informed the estate lawyer that he could not find anything wrong with the accounting. I was then asked to wait for the beneficiary's lawyer to go over the info he had requested. Then I was again asked to wait for this beneficiary's lawyer to prepare a summary and review for his client.

    Two months have now passed since the last court appointment date, and NO new court appointment date has been set. The other beneficiary who had signed her final release believes that the unahappy beneficiary is deliberately avoiding her lawyers when they tell her that she can't get more money of the estate and the accounting is all good, in order to try and hold up this estate even longer. This beneficiary who signed her final release is fed up and upset that we have had to wait so long.

    We still don't know what the supposed dispute is. The unhappy beneficiary has not bothered to share what that is with anyone.

    I'm very confused. I am not a lawyer. I don't know what the rules are for passing accounts in Saskatchewan.

    This estate has now been held up over a year and with no resolve in sight. I am very stressed. I also waived all my exectuor's fees at the time of the interim distribution. My mother's death was extremely traumatic, so I gave in thinking that my mental health and well being was most important and took NO executor's compensation at all. It made no difference. This beneficiary has held up this estate now over one full year and used lawyers to do it, and NO one knows why.

    I really don't know what to do. The estate lawyer has asked me to continue to wait until he can get something in writing from the unhappy beneficiary's lawyer. Otherwise, that beneficiary can continue to change lawyers forever. I'm concerned that this beneficiary may now be avoiding this newest lawyer.

    My accounting is impeccable. That is all I have to absolve me from this estate once and for all. The goal is to pass the accounts. Also, the estate lawyer only charged the remaining allowable tariff fees, so he is now working for free unless this goes to a court hearing.

    Do you know if there is a time period in Saskatchewan that a beneficiary has to file a dispute against an estate, once that beneficiary has been informed that the executor has applied to the court to pass the accounts? Thank you.

    Extremely Stressed!

    ReplyDelete
  72. I am the Executor of my late sister's estate in which there are three grown beneficiary children. One of them is a long-time substance and alcohol abuser now on a permanent "self-inflicted" disability pension after coming out of a coma caused by a drug overdose less than two years ago. Unlike the other beneficiaries, she has caused consistent disruption to the process, doctoring legal documents that were to be signed by her making them invalid, making unreasonable demands on the ever changing retrieval of contents from the house, even after it was sold and the deal closed, the vast majority of the contents which she received anyway, along with questioning the real estate agent about his assessment of the property prior to the sale, a man who has 37 years in the business! These are just a couple of the bizarre things she has done. In the end, her portion of the estate which will be in excess of $200,000 that in order to maintain her disability pension, must be invested since she can only have a limited amount in her bank account. She also has a teenage child that my sister, despite knowing her daughter's mindset, strangely did not make separate trust provisions in her will to take care of her granddaughter and I am afraid her daughter is so mentally unstable(she is still drinking heavily and taking pills) it has become abundantly clear, she is not capable of handling the significant funds she will receive in the process.
    My sister's lawyer who I am dealing with is fully aware of what has happened and my niece's antics in the process from the beginning. What, legally, are the options here especially related to me the deceased's brother and Estate Trustee in this particular case which has essentially become untenable, in dealing with this part of the dispersal of the funds?

    ReplyDelete
    Replies
    1. It's not up to an executor to protect a beneficiary from herself, but I understand that as family members you want to do this.

      Double-check the rules regarding the provincial pension. My understanding is that there is a limit on assets, period, whether invested or not.

      I suspect what you mean is that for your sister to maintain her pension, the funds must be held in a trust for her. That's not the same as being invested. That means that someone else has control of the money. It may be too late for this, as the funds were left directly to her by the will.

      Assuming you are able to work with the rules to pay her funds into a trust, who would be her trustee? If she doesn't have a court-appointed trustee and she hasn't given anyone power of attorney, nobody has the legal right to hold her money for her.

      Lynne

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  73. Hi...
    I am a benefiary to my godfather's estate who passed away April 19, 2008.
    He did appoint a friend as the executor
    who I don't trust. After some initial e-mails and phone calls, I have not had any contact with him in 4 years. His phone number is no longer in service and his e-mail doesn't work. He did pass th estate over to a lawyer who I have to contact to get information which is very limited. I need to know what my rights are...all the other benefiaries are in Austria and I have no way to contact them. HELP!!! I just want this situation settled and over!

    ReplyDelete
    Replies
    1. I assume that the unsaid part of your question is that you haven't yet received your inheritance.

      Have you asked the lawyer directly whether he has lost contact with the executor? If you are a residuary beneficiary of the estae, and the lawyer knows where the executor is, he needs to tell you. You have a right to know what's going on in the estate, and four years is a pretty long time to wait.

      If the lawyer says that he has lost touch with the executor, this means that he no longer has a client. Without a client, he can't proceed with the estate. If this is the case, talk to a lawyer (not the same one) to find out whether you can find a way to remove the executor and carry on. This sounds simple but it's not - for one thing you may not know where the assets are if the executor can't be found.

      Lynne

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  74. Hi Ms. Butler, I came across your site and hope you could help me. I have been appointed POA for my father, (my mother passed away years ago). He is 69 years old, retired and is currently on the waiting list to be placed into a long term care nursing facility (his choice, due to health reasons) He is not at home, he is in the hospital due to the extensive care he needs awaiting this placement.
    He owns a house soley in his name with an outstanding mortgage. I also found out that there is debt in credit cards and house bills also that are under his name soley. In his will I am also named the executor. We have a joint account together (his) where he gets his pension and bills are paid etc.
    I have 3 three brothers who currently live in the house who do not pay the mortgage or bills. The money my father currently gets is paying for his stay at the hospital while waiting for placement.
    1. In the event the mortgage is not paid for months as well as bills, am I responsible for that legally to be paid from my pocket?
    2. I believe the bank can foreclose, seize the house (if thats right) but then what happens to the bills?
    3. And in the event my father passess away, am I legally responsible for any of his debt legally?
    I need any help you can give me, so I can protect myself, 2 kids and husband.
    I thank you in advance.

    ReplyDelete
    Replies
    1. You haven't said whether the PoA is in force, but I'll assume that it is because you refer to your father's "extensive care". Your responsibility under a power of attorney is to do what's best for him. Understand that this may not be what's good for your brothers. If there is a danger that the house will be foreclosed upon, why are you keeping it? How does that benefit you father? Have you thought about putting it on the market? You have the legal right to do that. Now I too have siblings and I can just imagine the scene that would take place if I told them I was selling the house they live in. But your brothers are not your problem, or your father's problem for that matter. Your answer to them is that your father needs the money from the house for his future care. It sounds as if he can't afford to keep the house, and even if he could, why should he? Give it some thought.

      No, you are not responsible for your father's debt, but be careful about allowing his assets to dissipate under your care (I mean the house). You COULD be liable for that loss.

      Lynne

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  75. can one Beneficiary be changed to another Beneficiary with out the first Beneficiary not being informed of the change of an rrsp?

    mike

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    Replies
    1. Hi Mike,

      If the person who owns the RRSP is alive, he can change the beneficiary designation as often as he likes without telling anyone. He owns the RRSP after all.

      Now if the owner of the RRSP has already died, the money has to go to the person he designated.

      Lynne

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  76. I am trying to find out what happens in the case where one of the co-executors becomes too sick to be able to finish up the estate?
    If someone is acting as their power of attorney, does the responsibility of being an executor become their responsibility?

    ReplyDelete
  77. Hi there. My grandparents bought four plots in 1972 when my Mother passed. Her name and my Fathers name were put on the headstone at that time with my Dads date not filled in. My Dad just passed away and was cremated and buried with my mother. My aunt who hated my father wants him dug up and removed. She was my grandparents executor(they paid for the plots - not her). What can I do. I can't believe this can happen.

    ReplyDelete
    Replies
    1. I've never seen or heard of this situation before. What a nasty thing for your aunt to do. My initial reaction is that your aunt is over-stepping her authority as your grandparents' executor. To me, the fact that your father's name was inscribe on the headstone is a clear indication of the wishes of your grandparents, who owned the plots. So trying to have your father's remains moved would appear to be going directly against their instructions. An executor has the right and the obligation to protect and maximize the property of the deceased they represent, but how moving your father's remains would fit into that responsibility is beyond me. Like I said, I haven't seen this before and I've never researched it, but my belief, after 26 years in this business, is that she has no right to do this. She's just bullying people.

      Lynne

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  78. Hi Not sure if you can answer this question, but here goes. One of the executor's of my mother's will took cheques made out to three of the benificiaries from the bank and said they would be mailed out. The other four benificiaries received their cheques that day. It has been over 10 days and the cheques mailed out have not shown up. The excutor is not compliant, refuses to give any other information other than the cheques were mailed. What do you suggest?

    ReplyDelete
    Replies
    1. This isn't really an estate planning or estate admin question, but here goes. If the cheques really were mailed, they'll show up shortly. Ten days is too early to panic, in my view. If all but one show up, you can always ask that a stop payment be put on the cheque, which you can presume to be lost, and ask that a new one be issued. If none of them show up in reasonable time, there's a problem. Either the executor has sent all of the cheques to incorrect addresses or they were never mailed.

      Lynne

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  79. Hi Lynne,

    My Grandma has passed away in Alberta & she named 3 executors who are also beneficiaries of the estate. Her home is basically the bulk of the estate. My question is its worded that 3 executors are named but 2 can bind the 3rd would that be on every decision or when they are stuck on a decision and should all topics still go thru the 3rd person or can they just make all decisions without the 3rd person since 2 agree.

    #2 When signing your will who can be in the room?

    #3 Should executors change the locks on the residence for any reason?

    ReplyDelete
    Replies
    1. #1 All decisions must be unanimous by all three, unless the will allows them to decide by majority.

      #2 It makes no difference who is in the room. It only matters who signs as witness, who obviously must be in the room.

      #3. Yes, in fact I always advise executors to change the locks on vacant houses. The executor is responsible for anything that goes missing. You don't necessarily know who has a key (neighbour, friend, caregiver). Besides, most family members have no hesitation in going into a relative's home and taking whatever they want, and in their own minds justifying it as a memento.

      Lynne

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  80. Thank you for your reply. Do all 3 executors have to sign for probate, when there is a clause that 2 of 3 just have to agree? The 3rd executor would like to probate with a different lawyer since the lawyer has known 1 executor for decades and so it would appear that is a conflict of interest.

    ReplyDelete
    Replies
    1. Are you saying that one executor won't use a lawyer because that lawyer has known one of the other executors for a long time? In what possible way is that a conflict of interest? Someone who is using that as an excuse not to sign the probate either has a hidden agenda, or is simply a trouble-maker.

      Lynne

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  81. My Father passed away April 4th in Ontario. I have a notarized copy of Dad's will.

    As a daughter I am named as a co-executor of his estate, with my Mother. Dad had told me Mom would inherit everything as the surviving spouse, and that matches the will, I have no issues there.

    My father had given a bank some post-dated cheques, to pay my brother's mortgage every month. There were no provisions in Dad's will that specifically reference Dad paying my brother's mortgage. As far as I know, my Father didn't act as a guarantor on my brother's mortgage, and the property's title is solely in my brother's name.

    Do the executors need to count those existing cheques as a debt on the estate, to be paid out before the estate is settled?

    The bank is foreclosing on my brother's mortgage, so I am not sure if an executor of Dad's estate, needs to talk to my brother's bank (which holds the mortgage).

    Thanks in advance for any help you can provide.

    ReplyDelete
    Replies
    1. It appears from what you've said that the mortgage is not in fact a debt of your father's. Normally transactions should cease in the deceased's account. It wouldn't hurt to contact the bank to make sure they know that your father has passed away.

      Lynne

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  82. Hi,
    My sisters and I are beneficiaries of my dad's estate. My oldest sister is the trustee. The estate was insolvent, and we had to pay alot of things out of pocket, until Dad's house got sold. Now it's time to be refunded, and my oldest sister says that she can only repay what we submit original receipts for, no scans or photocopies. My youngest sister is pregnant, due any day, and her originals are packed in boxes, hard to get to, plus she is not comfortable with mailing them out; she'd rather keep the originals and send scans. Is it a legal requirement for the trustee to have original receipts, before refunding funeral and burial expenses?

    ReplyDelete
    Replies
    1. No, it's not a legal requirement for the trustee to have original receipts. However, she may be planning to pass accounts through the courts, or perhaps her accountant has requested originals for tax purposes.

      Lynne

      Delete
  83. My father in-law passed away about 11 years ago now. My husband and I thought everthing was settled regarding his estate, but when we when to the lands titles office to get a copy of the legal lot listing for the property we found out it was still listed under the estate of..... We were wanting to know how we go about changing the title of the property to my husbands name. He and his older brother are excuators on the will. His older brother closed the bank accounts and split the money between the four children from his fathers first marriage and never gave anything to the children from his second marriage. His older brother is from the first marriage. The four,older brother included, said they don't want anything else to do with the property in question and didn't care what happened to it, when it came to paying the taxes on it. my husband and I have paid the taxes every year since his death and assumed the property was settled in my husbands name. that's not the case. The lawyer that was handling the estate has since passed. What we want to know is can we get the property titled to my husband or do we have to take all this to court and settle it there and what rights do we have seeing we have paid the property tax every year. The will states that all monies be divided equally and the excuators decide what should be done with the property. What can we do about this?

    ReplyDelete
    Replies
    1. If your husband and his brother are the executors of his father's will, the fault in not transferring the property lies with them. It's not the lawyer's job to do this - it's the executor's job. It was part of their duty 11 years ago to deal with this property. Since they didn't, and they are still executors, it's up to them to finish the work.

      Since the title is in the name of the estate, obviously the will was probated. Now they have to transfer the property according to the will. Don't rely on verbal statements that someone doesn't care about a property; when there is money involved, people always care what happens.

      It would be a good idea for your husband and his brother to hire a new lawyer for the estate, because:
      1. you and your husband have been paying taxes on a property you don't own
      2. It sounds as if the money from the bank account was not properly distributed and therefore there may be beneficiaries that still need to receive an inheritance
      3. I find it highly unlikely that you FIL made a will saying the executors could do whatever they want with the property

      It may not work out that this property goes to your husband since there are so many issues. This estate sounds like a total mess, really, but perhaps with some help he can straighten it out. Make sure you find a lawyer with plenty of experience in estate work, as this is no job for a dabbler.

      I hope it works out.

      Lynne

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  84. What is the executor's responsibility in terms of giving updates on the status of an estate? my grandmother passed away over a year ago (I am a beneficiary) and when I asked the executor the status and information on expenses laid out he refused. there is a large property involved and to my knowledge one of the offspring of the executor is living at the house. I have not even received a copy of the will or been contacted by a lawyer. do beneficiaries have to authorize expenditures?

    ReplyDelete
    Replies
    1. My general feeling is that executors who refuse to communicate anything to the beneficiaries probably have something to hide. Otherwise, I just don't see the upside of causing all kinds of problems by being secretive.

      There are no specific rules about how often or how well an executor must communicate with beneficiaries. However, there is a general rule that an estate should be wound up in about a year unless there are problems. As the executor hasn't mentioned any problems, we can assume that the estate should be just about wound up by now.

      This general rule, known as "the executor's year" means that you have given him a chance to get things done and now you can hire a lawyer to put some pressure on him. There are other parts of this rule that may apply too, such as him having to pay you interest on your share in certain circumstances.

      You are only entitled to have a copy of the will if you are a residuary beneficiary of the estate. If you're not sure if you're a residuary beneficiary or not, ask the lawyer to advise you on that.

      Beneficiaries do not have to authorize expenses as the estate goes on. The executor can do that without input from them, as long as he is working within the rules. Sometimes we don't know if he is or not until he presents his accounting when the estate is winding up. I suspect that the executor you're dealing with is going to delay that accounting as long as possible as one of his kids is living in the property.

      I suggest that you ask a lawyer to look into this for you. The executor may be further along with things than you realize, in which case you'll receive information that you need.

      Remember that as a beneficiary, you have the right to insist on receiving your share in a timely manner, but you also have the obligation to your grand mother to ensure that her wishes are being carried out properly by the executor.

      If the cost of seeing a lawyer is an issue, perhaps other beneficiaries would pool resources with you. Another option is to sign a document saying you'll pay the lawyer out of your inheritance when you get it.

      Lynne

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  85. What information is an executor entitled to? I had someone approach me and ask about a transaction i entered into with the deceased 6 years ago. My initial reaction was to decline to give info, but uppon thinking about it, I have no idea whether I shoudl provide the information requested?

    ReplyDelete
    Replies
    1. I assume that the someone who approached you is the executor of an estate. I would guess that the executor is trying to determine the assets and debts of the estate, and wants to know whether the transaction that involved you resulted in either a receivable or payable for the estate.

      You don't say whether you're a beneficiary of the estate. If you are, the executor may be trying to determine whether there needs to be a set-off against your share for anything you still owe the deceased.

      In law, an executor steps into the place of the deceased, and is entitled to any information and paperwork that the deceased was entitled to.

      Lynne

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  86. I recently lost my father and am coexecutor in his will, which has already been probated.
    Unfortunately the co-executor has been removing and selling items from my fathers home.
    Iam wondering if I have any recourse in this situation?

    ReplyDelete
    Replies
    1. I assume you mean that when the items are being sold, the executor is keeping the money. If the money is being placed into a bank account as part of the estate, that is alright, unless of course the sold items were supposed to be given to someone in particular.

      If the executor is selling items and keeping the money, you can report it, like any theft, to the police. Your other option is to confront the executor and demand that an amount equal to the sale proceeds be repaid immediately.

      If there is no co-operation from the executor and you don't want to call the police, you can ask the court to remove the executor based on this illegal behaviour. You will have to prove your case, of course.

      Lynne

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  87. Hi Lynne,

    My Mom sadly passed away last December, surprisingly spent all of her money, was in debt, but has a house left over.

    She remarried 2 years ago.

    Mom and her new husband did a legal prenuptual agreement on the house that her and new husband lived in. He paid for the house, but being 10 years her senior, he put the deed in Mom's name only, and he would have Life Estate if anything happened to her first! They were both comfortable with that!

    The house, and all of her furniture has been left to us, which her husband knows this, and is fine with it.

    Her new husband started dating a woman shortly after my Mom passed away. They are married now.

    Mom had a legal will naming my Sister and I as Trustees, but just before she passed away, she did a holograph will.
    She directs us by name, but forgot to say we are trustees.

    We have had two lawyers who have done nothing in 7 months. We've decided to try things on our own, and as of now, we don't have a lawyer!

    Her new husband was supposed to sign off of being a trustee, and doesn't want to be trustee.

    Did my Mom's holograph will stating "no other women in our home" effect the prenup that doesn't address this subject?

    I am writing up paperwork stating that my sister and I are fine with his new wife living in the house with him, and in turn he is supposed to sign off of any right to being her trustee (which she didn't want him to be), and state that he has had his own legal advice, and doesn't contest my Mom's new holograph will.

    We are all going to sign this in his lawyers office, but my sister and I don't have legal advice. We are nervous about this, and want to be careful.

    His lawyer has started alot of trouble even stating that since her husband didn't have independant legal advice during an amendment of the prenup so he may not have understood what he was signing (yet, her husbands lawyer did the original prenup, and this was just an amendment to it, plus hubby is a business man.) Her husband signed the amendment with my Mom's lawyer, so his lawyer is threatening to take the house, stating it was a gift over $10,000, so it may go back to her husband! Can hubby take the house?

    Her husband and I get along very well, and he has agreed to sign what I have written after he's read it all.

    1)Hubby wants to live with new wife in the house.
    We are upset, understandably, but really, what can we do? We are trying to compromise, and get along.

    2) We are negotiating for him to sign off as trustee, and moms furniture! He agrees, no problem if we put in writing that new wife can live in the house with him, until they decide to move.

    Can you tell me the names of the forms I will need to have her husband sign to due with trustee, and any other certificates to do with the estate?

    Can his new wife have any claim on the house under the family law act on the house as she has not signed a prenup, and it will be their matrimonial home?

    Mom owed her bank LOC $15,000 .. the Banks Estate department told me they wrote it off, and so did collections .. this is what they told me yesterday .. we just got a letter from a T.O. Law firm stating that the bank is suing the estate, because there is a house, and have so far charged over $800 in fees and interest!

    I spoke to the Lawyer, and he says because of the house they can sue. He also said that he could make hubby leave the house to get the debt! Is this true?

    If her husband doesn't leave the house for 25 years .. what are we going to do with thousands of dollars in interest fees?

    We have no intention of trying to force hubby out of the house for the bank! Can they do this? ...and can they just continue to charge interest for years when our hands are tied?

    The Line of Credit of $15,000 is unsecured!

    This is honestly the worst mess I have ever seen Lynne! We need your help!

    ReplyDelete
  88. Hi Lynn, About 14 years ago my Father died and my younger sister ( C ) managed to get him to make her executor of his estate. My other sister and I did get a few dollars from the estate but nothing to brag about. Almost immediately after his death she purchased a Condo in a Toronto suburb. She was a single mom with a very ordinary desk job, and then about 2 years later she purchased a house in PEI and retired at 53. I was suspicious a bit at first, but I could not imagine her cheating us. I never received an accounting of the estate. Then life happened and I was too busy to look into it more, because my son died of cancer and I have had to deal with that grief. It has come to my mind again because she has really been throwing around money lately. I also need to find out if my father had any life insurance policies that I was never made aware of. Am I too late for any action and who should I contact ?? Thank-you.

    ReplyDelete
  89. Hi Lynn,
    I am the Liquidator of my father's Estate. Since the begining, my brother & sister (also Heirs) have been second guessing my every step in trying to settle the Estate. My father indicated that I am to be compensated for loss wages, travelling, expenses. I have the full responsibility to mange property, etc... His Will was done by a Notary in Quebec. Because of the complexity of things (business), the Estate is still not settled due to tax implications with the business & well over 16 months after my father's passing. The Accountant advised me that this should be completed in the next ten months. Now I have given the financial statements of the last year to my siblings, and they are picking at every little details. I now have the Notary & Accountant involved in answering their questions in order not to have further conflicts with them. They take a very long time in answering any of my questions via email, as we do not speak effectively. How long is a reasonable time frame for them to reply to me? Now they do not agree to my
    liquidator salary ( because I was employed by my father & they said my job stopped when he passed away). According to my Notary I am entitled to the same salary paid by my father. They are disputing everything. Very disappointed in them. Trying to respect my late fathers wishes. What is a reasonable response time from the heirs? Is maintaining the property ( grass, snow removal...) part of the liquidator's duties to manage property? What can they refuse to pay me, if it's indicated in the Will?

    than you

    ReplyDelete
    Replies
    1. Most of the time, I hear from beneficiaries complaining about lack of response from the executor, but your note shows that it's just as frustrating to be on the other side. It seems to me that if they ask you for a clarification then don't respond to your request for the information you need to answer the question, they can't want the answer very badly. If they don't respond, that's their problem. There isn't really any prescribed time for a response that is unique to estates, but if you ask someone a question and they don't answer within a couple of weeks, you can assume they don't intend to reply.

      The bit about your salary as an employee of your father is interesting. What job were you doing for him, and did the job continue exactly the same after his death? If it did not, then of course you should not be paid for it.

      You are entitled to be paid for acting as liquidator of the estate (which is not the same as getting the salary your father paid you). You should not be taking a salary from the estate. A liquidator will be paid a percentage of the estate at the time the estate is wound up. It's not a salaried job, but you should get a higher amount of compensation if you spent a lot of hours maintaining the property.

      Lynne

      Delete
  90. My mom is one of three executors...the belongs of the house is to be divided among nine people nieces/nephews(including 3 executors). Do all executors need to be present when the items are dispursed? i.e. clothes, nick nacks, furniture?? My mom was not present a few times while people came to go through the belongs and doesn't think this is legal

    ReplyDelete
    Replies
    1. All executors are responsible for all assets of the estate. Nobody should be taking items from the house without the executors' consent and approval. Unless the three executors have agreed among themselves that one of them will be present to handle the situation, they all should be there.

      Lynne

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  91. What can be done if an executor isn't doing his job. My Dad passed away in Dec/12. We have asked the executor for a statement of the estate and for Dad's record showing what some of owed him for money loaned. It took him 4 months to tell us what we owed but haven't seen the paper work and no statement yet. This is taking place in BC.

    ReplyDelete
    Replies
    1. Have you made a formal request in writing for an accounting of the estate? If not, try starting with that.

      The usual remedy against an executor who won't provide an accounting is to apply to the court to force the executor to account. This is unpleasant when the executor is a family member, and of course it isn't quick or easy, but it can be effective.

      As the estate is nearly a year old now, the executor should be getting ready to wrap things up (unless there were legal or financial complications). This is the time that the executor normally provides the accounting because he wants to get paid and to pay out the beneficiaries.

      Lynne

      Delete
  92. My mother in law passed away back in March and left my husband her house as they had a "rights of surviorship" written up by a lawyer when she was of sound mind. There was also money left to both him and his sister in a GIC which had both their names on when a will was written up years ago after my father in law died. This was to avoid any taxes the goverment wants to take after my mother in laws death.
    They both have to sign to release this money. Now my sister in law is wanting $20,000.00 for being the executor.So she will not sign until my husband agrees. Cash that was left to them totalled $240,000.00. How can she ask for $20,000.00? My husband told her he would see her in court. Does she have any legs to stand on?

    ReplyDelete
    Replies
    1. To be honest, I can't answer this question. Your facts are contradictory. You said that the GIC was left to them in a will when your father in law died, but you also said their names were on it. Both of those things can't be true because if their names were on it, they'd be joint owners and no will would touch them. It also doesn't make sense about avoiding tax, since there wouldn't be any tax.

      If I understand correctly about the house, it was in joint names between your husband and his mother. Is that right? I think this must be what you mean by having rights of survivorship written up. If so, it is not covered by the will either.

      If the house was in joint names and there was nothing in the estate except for the GICs, then the sister in law's claim for compensation is way too high and your husband is right to challenge that.

      If the house was in the estate, that would allow her to claim a higher amount.

      I'm sorry I can't be more clear but I'm not sure I have the facts right.

      Lynne

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  93. Hi Lynne,

    My Auntie passed away three years ago and was still married to my uncle but separated. There was no will ever found. Since my aunt and uncle were still married the lawyers determined my uncle would get her estate. Since then (About two years ago) my uncle signed the value of the estate over to my siblings and I. He also made my other uncle the executor.

    The executor would like the estate to go to my aunties children and nothing has been happening with the estate.

    Does the executor have to settle the estate soon? It has been two years since the legality of everything was signed over to my brothers and I.

    ReplyDelete
  94. My father's common law spouse of 19 yrs passed away. Their intent was to leave their funds to their children, but joint assets they believed would fall to the survivor. As he found out from MTO not the case. The executor is preparing to have his phone service cut and will not sign the joint vehicles back to him. My father is 90. She went through their house and took a large number of items from the house without asking and held his passport even though he requested it a number of times. She has keys to his home, she lies and is very deceitful about everything. She even hacked his email and changed the passwords. This person is off the wall. What can he do?

    ReplyDelete
    Replies
    1. If assets were jointly held, then yes they are supposed to pass to the survivor. The executor of the CL spouse's estate is stealing from your father. If your father feels unable (physically or otherwise) to deal with this person, he has a couple of choices. He can make an immediate power of attorney that appoints someone to look after this stuff for him. If the executor doesn't want to sign over things such as the vehicle, the POA can take the death certificate to the registry and do it himself or herself.

      Your father can also call the police to report the theft of his passport and his household items. There might also be a way to get a court order or bond restraining this nutjob from going into your father's home.

      Get moving on this before your father's belongings are sold off.

      Lynne
      PS. What is MTO?

      Delete
  95. Hi Lynne,

    In my parents will there was a 70/30% split of all their bank accounts with the 30% going to me. But the remainder of the estate is split 50/50. Probate has been opened on the will but I was wondering while the probate is open what happens to the interest on the bank accounts of my parents. is that split 70/30 or 50/50

    Thank you for taking the time to read this.

    ReplyDelete
  96. Hi Lynne,

    My Aunt passed away last January 2012 She did not have a Will and she has a Refund from CRA coming back to her for over $1000.00. Who would the Refund Go to? she has no kids. also She has a house. she has a student still living in the house we can't kick her out because she is still paying the bills. Can you help. We already have a lawyer but he has been no help at all. We need to close her bank account but CIBC said they can't close it because there was no will. She has Chequing and Savings and RRSP and TFSA. and she has a cheque from the Insurence company coming to her next week.

    ReplyDelete
    Replies
    1. I'm not sure who you refer to when you say "we" but it appears that various family members are doing what they can to work on the estate with no real organization or legal standing. You can't just walk into a bank and close someone else's account. You need legal authority for that.

      One of you needs to apply to the court to be appointed as the administrator of the estate. This person will receive the refund cheque, deal with the tenants, pay the bills, sell the house, and do whatever else needs to be done. If your lawyer hasn't already told you that, get a new lawyer because the need for an administrator is obvious. The lawyer should also be able to tell you who among you has the right to be the one who applies.

      During the process of applying to the court, you will be advised by the lawyer of who is entitled to inherit the estate. You can find this out for yourself by looking up the intestacy law for your province on a free legal research site called www.canlii.org.

      Lynne

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  97. Hi Lynne,
    In September of 2012, my Mom passed away. My brother and I were named Executors. My husband had passed away just weeks before that so when my brother offered to find a lawyer, I allowed him to do that. Since then it’s been one issue after the other. My brother does not like to question anything and because I think I have the right to know what’s going on, it has caused a huge rift. One issue is that we are never called in to sign papers at the same time although it wouldn’t be difficult to do. My brother makes decisions without talking to me first like ordering a dumpster for my mom’s house and charging the estate a huge sum for it. The lawyer’s office wrote him a check for it. Do I not have the right to see a copy of the charges? I have asked the secretary for copies of papers and she blows me off all of the time and says she will give them to me in due time. I used this office to deal with transferring my home into just my name. When I called to get information on a piece of paper I needed to switch my house insurance into my name, she tried to take control and as my funds are limited, I dared to ask if this would cost me. She would not directly answer me. I then received a copy an invoice for this transaction and although it was not a huge amount, it was paid out of my mom’s estate. Is that not illegal? I have tried to talk to my brother about this and only met with rage and basically told to back off. I feel like I am being pushed aside when the reason for us both being executors was so that he couldn’t make moves without talking to me first. The lawyer’s office has allowed this all along. The lawyer’s office would not move forward with the certificate of clearance until my mom’s house was sold. Is this normal? A friend of mine dealing with her dad’s estate received the certificate of clearance months ago and has just now sold his home which makes me question our lawyer’s ways even more. I have no idea what everything is costing us and because my brother is not in need of the money, he really doesn’t care. Anything that you could tell me would be greatly appreciated as I’m at my wit’s end.

    ReplyDelete
  98. Hi Lynne,
    Here are the facts. My mother was recently diagnosed with terminal cancer. I am her only child and the sole beneficiary and executor. My father has already passed.
    My mother is renting a house with friends and all her assets are her furniture and car which is paid for, and an RRSP with myself named as the beneficiary on the RRSP worth $17,000. She also has a line of credit which I believe she used to get all of her furniture and $18,000 is owed and she has no life insurance on it.
    My understanding is that at death the RRSP will be claimed as income on her final income tax return and the taxes are to be paid by the estate. I don't think I will inherit the RRSP because all of it will be used to pay her LOC debt. Am I understanding this correctly? Is there anything I should do now?

    ReplyDelete
  99. My Father passed Sept 30th of this yr from prostate cancer that was detected in 2008 .
    His Will was written in 2010
    He became deathly ill at the end of June this yr . My brother went up to look after him apparently , but ended up trying to run the business . My Dad told me that my brother cannot run the business . In August of this yr . my Dad made 2 amends to his Will which were not added till 3 days before his death . He added a co executor ( his accountant ) to protect myself and my step mothers interests and gave his 51 shares to my brother on the advice of his accountant . My Dads first Will (2010) said his shares were to go to my Step Mother , which my brother has a hatred for .
    Since my Dads passing , no one has seen the Will or received a copy of it except my brother (executor) and the co executor .The co executor told the Lawyer that made the amends to the Will not to give anyone a copy of it .
    They have hired another Lawyer since to handle the estate .
    Both Lawyers have been contacted for a copy of my Dads Will , but I have not received a copy within the 15 day asking period .
    What my questions are :
    1 / What is the law regarding the time frame from Fathers death to provided all persons named in his Will with a copy of it ?
    2 / Is there grounds to contest his will on the amends he made due to his health condition ? I do believe my Dad was baggered by my brother and conned by the account to make the amends as my brother wanted it all , and the accountant was doctoring the books .
    3 / When is the best time to contest a Will ?
    4 / Can a Will be contested after Probate or contested without a copy of the Will ?
    5 / Does my brother have a right to go change the locks on my Dads house even tho my step mothers name was also on the deed , and with the wording on the deed , it became her house free and clear ? The co executor said he did but I do not find this a legal move .
    My brother and I do not get along , and the co executor has turned on me as well when I found out he had told my brother how to screw over my step mother on her 49 shares of the company to make sure she does not receive a dime while it is operating (doctor the books)
    I have not been informed of anything in writing . I have been told by word of mouth what I was Willed as well as who the Lawyer is that is handling my Dads estate .
    I need some advise here as I do believe my brother is cleaning out bank accounts and selling off some of my Dads personal items of value

    ReplyDelete
    Replies
    1. It appears to be about 6 weeks since your father passed away. Too early to panic.

      You only have a right to see the will if you are a residuary beneficiary of the estate. Doesn't matter that this was your father; you have to be a residuary beneficiary to see it. The lawyer who drew the will is of course not going to send you a copy - you're not his client. The lawyer who is working on the probate works for the executor, not you, and can only send out copies of things with the executor's permission. You said you are named in the will, so if you are named AS A RESIDUARY BENEFICIARY then you should receive a copy. There is no time limit set down, but normally this is done at the time the probate request is sent to the court.

      It is better, in my view, to contest a will while it is undergoing the probate process. Otherwise you run the risk of the executor going ahead and distributing the estate under the probate before you bring your action to court.

      I understand that you wish to rely on the ground that your father was coerced or pressured into making changes to his will. This is a valid ground, but I have to warn you, this is ugly litigation. It's hard to prove what a person did or didn't do, or want, or think, or why they did something. It will involve discussions about your father's mental condition. I'm just saying that you should think long and hard before you do this, and talk frankly with an experienced wills lawyer to set out what evidence you have.

      The situation with the house doesn't really make sense. Does your step-mother live there? Are you saying they evicted her? Are you assuming her name is on the title to the home or have you actually seen it? Keep in mind that even if her name is on it, she may be a tenant in common and not a joint owner. This means your brother should be taking care of whatever assets in the house belong to your father. He can't change the locks without the other owner's permission if she lives there.

      You seem pretty defensive about the accountant. Why on earth would the accountant want to "screw over" your step-mother? Don't assume that because you have a different view on who should be running the company that the accountant is out to get someone. I'm sure he has other more important things in his life than screwing over a client's spouse. He no doubt gave the accounting advice to your father that he felt was best.

      Your brother probably is cleaning out bank accounts and selling items. That's his job as executor.

      Lynne

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    2. Lynn .
      The accountant told me that he told my Brother how my step mom would not receive a dime from the company being run , He told my brother either the company shows a profit (which he has doctored the books for the past 5 yrs to show it hasnt) or she has to work there , She cannot work there as she has dementia .
      The co shared / owned house that my Dad and Step Mom owned has both persons on the deed as owners . My Step Mom has a POA to look after her assets which my brother has not contacted over changing the locks , cash spent out of business account etc .
      In my Fathers will , I am named in it and have been told by the co executor that I was and some of what I was getting .
      Does my brother or the co executor have a right to touch any bank accounts/ safety deposit boxes / property that were left to me or anyone else from my Dad ? If they have , i it legal ?
      As for my Dads state of mind . My Dad told me that my brother was hounding him for the company which he had told him no right up till August . In August , the accountant who became co executor started telling my Dad it was not right to leave my step mom his shares because she had dementia . My Father was in constent pain and just wanted peace and quite . I talked to my Dad the day after he changed his will , which was the day before he went back into hospital and 2 days before he slipped into a coma and passed . Those are my reasons for saying he was not in his right mind and coerced into changing his will . He was also not on any type of pain medication a the time and in extreem pain .
      Further , If a person is named in their Fathers estate , and there is a Lawyer for the estate , they call the Lawyer . is the Lawyer not responsible of answering questions ?
      If a person is named in a will , why would a person wait till after probate to give anyone a copy ? It has already been set for probate .

      Delete
    3. Just wondering if you are a "REAL" Lawyer or just someone who give's their opinion with their some know nothig of knowledge ?
      I asked a question , you gave some what ramble of a reply . and have not answered my second question .
      Would that be because you have zero knowledge and just fly from the hip ?????????
      Seriously , Either have some sort of legal knowledge , or stop giving bull shit replies . peoples live's depend on your answers ,,,

      Delete
    4. I graduated from law school in 1984 and have been practicing law since then, so yes I am a "REAL" lawyer.

      Yes I answered your question. You're welcome.

      Perhaps the reason I didn't answer your second question is because I actually do work at a full-time job and write this blog on my own time.

      If you don't like my style, go hire someone you do like.

      I might also add that in the four years that I've been writing this blog, and the 1.3 million people that have read my posts, yours is the first complaint I've received. You are angry at what's going on the estate, I get that, but there is no reason to take it out on me.

      Lynne

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    5. Then can you answer my many question of ,,,, how long does it , or should it take , for a person named in their Fathers will , or anyones will for that matter , to receive a copy of the will ?

      Delete
  100. i am executor of my moms will she is still alive if i sell her house do i recive any thing out of it

    ReplyDelete
    Replies
    1. If she is still alive, you can't sell it. You have no authority of any kind under that will while your mother is alive. And even if you could legally sell it, why would you get anything out of selling someone else's house?

      Lynne

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  101. Hi Lynne I won a small claim against a person who died a week ago. Can I file a claim against the estate? Is there a time limit? How do I find out the lawyer who is handling the estate?

    ReplyDelete
    Replies
    1. Yes, you can collect from the estate, assuming there is money there. I would do this as soon as possible. The person you need to contact is actually the executor of the estate, and not the lawyer. Now, you most likely don't know who that is, but you obviously have some source of information if you know about the death. If the person was married, the executor is probably his or her spouse. You may have to call or write to the family to ask who is acting as executor. Since you just took this person to court, you must know his or her address.

      Lynne

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  102. Hi Lynne,
    My Father died leaving his estate to my stepmother, she was in bad health and suffered from dementia and was blind. My stepmothers adult children took over, cleaning out the contents of the home and paying themselves thousands of dollars per month to take care of her. She died a year after my Father and her will (exactly the same as my Fathers) stated that the estate be split between both sides of the family. My question is regarding the RIFFS, my Father was her beneficiary and from there it went to the Estate, I believe the beneficiary was changed from the estate to her children after my Father died. Is that possible considering she had dementia ? Her son took power of attorney after my Father died and yet the executor did all the paper work etc. very confusing for the family and heartbreaking

    ReplyDelete
  103. My Mother was appointed as executrix and Trustee to Dad's Will. She was deceased before she completed the Probate. My sister and brother were appointed to be Executors and Trustees of the will in the Place and Stead of my mom. My brother has excused himself of the responsibility and so that leaves my sister as sole executor and Trustee.
    Does she have to do the whole Probate over again or what steps does she need to take to complete the Probate of my fatheres Will? This would be under Sasktchewan Law.

    ReplyDelete
    Replies
    1. No, she shouldn't have to start all over. She should be able to pick up where your mother left off.

      Lynne

      Delete
  104. Hi Lynne,

    First, I would like to thank you for creating the Alberta Probate Kit. Your book has been invaluable in sorting out probate for my dad's estate. (Actually, I suppose 'invaluable' is the wrong word - your book is worth the thousands of dollars in probate fees we would have otherwise paid to a lawyer.)

    Second, I have a question I'm hoping you can help with. My brother and I are co-executors of my dad's estate, and we are the only two beneficiaries (split 50-50). We're trying to figure out the correct way to deal with the NC19/NC27 forms. From your book, I think I understand that an executor who is also a beneficiary can notify him/herself and simply sign the acknowledgement at the bottom of the NC19 to prove notification. In this case, the executor does not have to add this 'self-service' to the N27 affidavit. What happens in our case? Can we each notify ourselves, sign the acknowledgement and skip the NC27? Or, as it seems that the NC27 is an essential part of the probate application, do we have to notify each other and then each sign an NC27 affirming service of notification? Alternately, should I notify myself and my brother (or vice versa) and have only one of us sign an NC27? What do the courts want to see?

    Your expert opinion in this matter would be greatly appreciated.

    Regards,
    Shannon

    ReplyDelete
    Replies
    1. Hi Shannon,
      Thanks for your feedback about the AB probate kit. I'm really glad you found it useful.

      In your case, you do not need the NC27. Make an NC19 for you and one for your brother. On each NC19, both of you sign as executors. On your NC19, you sign the acknowledgement, and he will do the same on his. (In other words, each NC19 will have a total of 3 signatures as both of you are serving you, and both of you are serving your brother).

      As long as you included the ORIGINAL NC19s with original signatures on the acknowledgements, along with your application for probate (NC2), you will not need the NC27. This is set out in the Surrogate Rules as an alternate means of proving service.

      Lynne

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  105. Hello
    In the process of obtaining a proof of legal authority - Appt. of Admin or Grant of Probate?
    Do not know where to begin?
    If and when I do succeed, will I be responsible for my mother's debts, will they still be active and she passed on in 2004.

    ReplyDelete
    Replies
    1. As for where to begin, the first question is whether there is a will. If there is, you may need to apply for probate. If there is no will, you may need to apply for a grant of administration. I assume that you are the only beneficiary of the estate since your mother died 10 years ago and you are just now getting around to dealing with it.

      If you want information as to how to apply for the grant, or help getting it, you would most likely go to a lawyer with the will and all relevant paperwork. The lawyer would obtain the grant, and then either hand it over to you to carry on with the estate, or for a fee, take care of the estate for you.

      If the assets are complex, you might consider going to a trust company instead and letting them handle the estate for you.

      If you are relatively sure that you can do this yourself, you may be able to find a kit that helps you. I know of kits for AB, BC and ON, and you can find links to them in the "interesting links" section of this blog.

      Some debts will have disappeared by now. Others will not. You will need to do some investigating, including a search of the title to any real estate to check for liens. If your province has a personal property registry, check that for writs.

      As executor, you are responsible for paying all legally enforceable debts out of the estate before you pay yourself.

      Lynne

      Delete
  106. Hi Lynne

    Last year my dad passed away in May and my mom passed away in September. When my mother passed away I went to Ontario to help my sister with removal of contents from my parents rental house. Anyways not even 12 hours after my moms passing, my sister and the executor to my mom and dads Will withdrew $1000 account "because she needed the money". There are three beneficiaries to the Will, my two brothers and myself. I asked her for a copy of the Will and she refused to give my one. She had kicked me out of the house and she had told me I wasn't getting nothing. Her and one of the beneficiaries split all of the contents amongst themselves or gave some away. I have even sent her a registered letter asking for a copy of the Will and the Registered letter was sent back to me. What should I do?

    ReplyDelete
    Replies
    1. You need a lawyer. You have rights as a beneficiary and it seems that you've tried everything you can on your own to enforce them. Pretty soon there will be nothing left in the estate to salvage. As extra leverage, she can be charged criminally with theft if she has taken money from the estate and spent it on herself (as opposed to on estate matters). She can kick you out of the house as it should be cleared and sold, but she cannot decide that you aren't going to get anything. She's out of control. You're going to need a lawyer to take her to court.

      Lynne

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  107. Hi Lynne,
    My mum died in Dec 2010, after giving PoA to my eldest sister; this sister was also appointed as mum's executor of her extremely small estate. After mum's death, my sister often reiterated her intent to carry out her duties to the fullest extent, and stated that each of our mum's five children were listed as beneficiaries in her will; to this end, I received what I was told was 20% ($5,000) of mum's estate. In January, 2014, I received another cheque, this time for $1000, which had apparently been kept in reserve for the past three years. My concern is that despite frequent requests, I have not received a copy of my mum's will. Past requests have been rebuffed and labelled as "intrusive" and "demanding," while more recent written and email requests have gone unanswered. I'm not looking for cash; instead, I simply want to read what my mother's wishes were. I live in BC, having left Toronto 35 years ago, and while I maintained a very close and loving relationship with my mum, I have limited contact with my four siblings who still live in TO. I find my sister's lack of transparency increasingly difficult to accept. Am I entitled to a copy of my mum's will, and if so, is it too late for me to ask for it? Is this a matter an estates lawyer could pursue on my behalf?
    Thanks very much,
    JS

    ReplyDelete
  108. Hi again, Lynne,

    I've just realised that I forgot to include some potentially important details in the question I sent a couple of days ago. (I'm pretty stressed-out at the thought of bringing legal action against a sibling, even one who has betrayed her obligations to our mother.)

    In August, 2012, about 20 months after my mother's death, I emailed a branch of the Ontario govt (JUS-G-MAG-CSD-Toronto-SCJ Estates) re getting a copy of the will. They weren't all that helpful or informative; and I didn't really understand their final form letter response:

    "If there was a will on record it would show up in the Court’s database. The Court had amended the original response to the correct name of the deceased [S.W.S.]. There is indeed no record of an Application being filed with the Court. The court suggests you contact the solicitor in question."

    Can I be sure that a lawyer was consulted, and if so, how do I find out his/her name? Could my sister have executed my mum's will "below the radar"--ie-- without reference to any official person or office?

    I also fear being told that the will has been lost, destroyed, etc. Is there an obligation to keep the document for a certain length of time?

    Thanks so very much. Your blog is the first comprehensible source of information on this subject that I've come across, and I'm learning a lot from it.

    Best regards,

    JS

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  109. My sisters husband just passed away. Her stepson is the executor of the will. My brother-in-law had a Life Income Fund but had named his son as beneficiary before they got married 5 years ago. But after doing our research into the Pension Benefit Standards Act it says unless my sister has signed a waiver (which she never did) then the LIF must go to the spouse. My brother-in-law just assumed that because they are married it would go to her. So will she be able to get the Life Income Fund if her step-son contests her getting it.

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    Replies
    1. With most pensions, a survivor's benefit must go to the spouse if there is a spouse. Some do not even allow a waiver. However, nobody should be assuming anything. The executor should be calling the administrator of the pension to confirm to whom the payment should be made. If he pays the wrong person, the one who should have been paid has grounds to sue him personally.

      Lynne

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  110. My father died in Alberta intestate. He has a family farm property in Ontario. I can apply to administer his assets in Alberta as I live there. How would I go about administering the Ontario property? Will EAT have to be paid?

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  112. My wife has just passed away and I am the excutor of the will. There are no provisions in the will for beneficiaries other than my self.There are joing accounts with me and RRSPs that I am beneficiary of all property was joint owned with me. Do I need to hire a lawyer to administer this will or is it simply do everything my self according to the will. Thank you John.

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    Replies
    1. Hi John. I'm sorry to hear about your wife's passing. I doubt that you will need to probate the will, or hire a lawyer. You should be able to deal with the RRSP through the bank. You can take a death certificate to the land titles registry yourself to ask for the paperwork to take her name of any real estate. I would suggest though that you consult an accountant to ask whether you need to make any tax elections or file any tax returns.

      Lynne

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  113. My wife has died and left me as executor of her will.Mostly all our assets are jointly held by she an I. There arre some RRSPs and a TFSA in her name that name me as beneficiary and successor. Its seems very simple. Do I need a lawyer to finalise this simple arrangement of is a vbisit to the bank needed to sort it out. Thank you .

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    Replies
    1. Hello. I'm sorry to hear about your wife's passing. You should not need a lawyer to deal with these assets, though as you say, you will have to make a visit or two to the bank.

      Lynne

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    2. Lynne I have transferred all of the RRSPs and our accounts were all joint accounts.thats all done with. She had a very small income of CPP .Do I have to advertise in the Royal Gazette in my case. I know we did not owe anybody anything.? Thanks in advance.

      Delete
    3. also Lynne when I get my wifes taxes done and thats it should I get a CRA clearance cert. After that do I have to register the estate as simple as it is.Or would that be final.? thanks.

      Delete
    4. You don't have to advertise for creditors. It is always optional. If you're confident that there are no creditors out there, you are entitled to choose not to advertise.

      Getting a clearance certificate is optional too, but it's a good idea to get one. That way you have proof that everything is done and that there will be no tax issues in the future.

      No, you do not need to register the estate anywhere. Once you get that clearance certificate, you are done.

      Lynne

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    5. Thank you very much Lynne. I am in N.S. and I thought it was mandatory to advertise in the Royal Gazette. I appreciate your help very much . John

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  114. Hi Lynn,

    My father passed away in November 2012. My mom and him had their divorce finalized about a month before died. He did not own the house he was living in or have any debt. In his will, he stated that everything was to be divided equally by all of his four children. My Great aunt and his sister are the executors of his estate. All we have received is the T5s from the life insurance. We have never seen a death certificate, bank statements or a list as what my aunt has done with his estate. We have received nothing. I have called her and asked her why the eatate isn't settled yet an she can't give me a straight answer. How do I go about this, without causing family drama?


    SR

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    Replies
    1. Hi SR,

      Enough time has passed now that the executors should have substantially wrapped up the estate.

      It's not unusual not to receive a death certificate. I have never heard of an executor distributing those to beneficiaries. Nor should you expect to see bank statements in the normal course of an estate.

      You should, however, expect to see the list you referred to, or some other accounting of what your aunt has done with the estate. In almost every case, the beneficiary doesn't get that list until the executor is ready to distribute the money, and sends around an accounting with a Release document.

      I don't suggest waiting for her to send you an accounting voluntarily. Let's face it, the majority of executors don't know what the heck they are doing and are just doing their best as they go along. This isn't always good news for the beneficiaries.

      Instead of asking why the estate isn't settled yet, try asking some specific questions. I would suggest asking: a) what date was the probate granted? b) have all the assets been collected? c) are there any debts still to be paid? d) has she filed any income tax returns for the estate? e) has she applied for the tax clearance certificate?

      If you can get these specific questions answered, you will learn quite a bit about what is left to be done with the estate, and how long you should expect to wait.

      If she can't - or won't - answer specific questions such as these, you may have a problem. I would suggest following up with a written request for information, to create the paper trail you may need to take her to court.

      Let's hope it doesn't come to that.

      Lynne

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  115. A family member passed recently and left myself and my sibling as beneficiaries. I believe as I write this the executor (my sibling) has gone to see a lawyer to start probate process. The only estate assets are monies in the bank (cash, RIFs? etc....)
    Being that it seems simple enough...could probate be quite quick in your opinion?

    Secondly, I am a Canadian but since 2013 I am a permanent resident of Japan. To receive monies, do I need to return to Canada and sign for such things? I have been told this. Also, before I receive... will I need to pay Canadian tax on the amount received or would it fall under income tax in Japan as income?
    Thank you

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    Replies
    1. I think what you're asking is not so much whether the probate process will be speedy, but whether the estate itself will wrap up quickly. Assuming that the assets are known and are simple, there should be no reason for the estate to be dragged out.

      Estates have a way of springing surprises on people - anything from unknown debts to problems with the will - but let's stay positive and hope all will be well.

      No, you do not have to return to Canada to collect your inheritance. The executor may send it to you where you are. You will most likely be asked to sign a Release of your sibling, but there is no need to come to Canada for that.

      In Canada, there is no income tax payable on inherited funds. You mentioned a RRIF, which is taxable. However, the executor should pay the tax owing on the RRIF before anything goes to you or your sibling, so again you will not have to worry about paying tax out of your own pocket.

      Whether Japan taxes its permanent residents on inheritance, I really couldn't say. The proper person to ask about this is an accountant in Japan who works in the area of personal income tax.

      Thanks for your question.

      Lynne

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  116. Hey Lynne,
    I am working with a woman who is being refused her inheritance by her sister who is the executor of the will. Her sister is demanding she sign a release before she delivers the funds. When my client said she would sign it upon receipt of the funds she received no response.
    She is very low income, living pay cheque to pay cheque, and can't afford legal assistance. Is there anything she can file on her own, or do you know of where she might be able to get some pro bono legal assistance, or might you have any suggestions for us? I work in a constituency office by the way.
    Look forward to hearing from you.
    kate

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    Replies
    1. Actually, it's pretty common practice that a beneficiary signs the release before actually receiving the cheque. An executor will often use this procedure where the beneficiary has been given a full accounting, and does not wish to dispute the accounting. If your friend has not received a full accounting, she should not be signing a release.

      If your friend has received and examined an accounting and is ok with it, the only question remaining is really the logistics of the exchange of documents and money. Perhaps they should meet in person, and one hands over the cheque at the same time as the other hands over the signed release.

      If your friend hasn't received an accounting, or wants to dispute the accounting, things get more complicated. The usual way of breaking a deadlock between executor and beneficiary is an application to the court to pass the executor's accounts. This isn't easy to do without a lawyer. It's also very adversarial, and I hope your friend and her sister can avoid this. If she needs help, one suggestion is to see whether the closest law school has a student legal clinic. If so, they do a good job for no fee (I did this in law school). Depending on your friend's age, she might also approach a seniors' resource centre.

      Lynne

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  117. My wife is one of the beneficiary of her late great uncles estate. However, the executor is no longer capable to perform her duties. How long does it take to have a new executor in place?

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  118. hi Lynne my wifw was executor of her Moms will and her Mobile home was probated. She had to sell the home and the original Bill of sale was missing .We could not get one anywhere the company she purchased the home from destroy their copies after 7 years. WE did manage to find a copy in the end . My question is and I hope it is a valid one. What would happen if we could not find that Bill of Sale? Is there a way of getting around this tricky situation. I am in Nova SCotia.

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  119. Hi Lynne,

    I am named as one of several beneficiaries of my great aunts estate. I received a copy of the will showing the estate to be equally divided. She passed away 3 months ago and I recently received a cheque which I am told is from a life insurance policy. The rest of the estate is still being dealt with by the executor but I have received no list of assets or accounting and have not seen or signed a release.

    I have requested a list of assets and liabilities from the executor but he has refused. I am wondering if an executor in BC Canada, is required to provide this information and if so, when can it be expected?

    Should I cash the cheque I received or wait until everything has been distributed? How am I to know if the life insurance amount was split evenly?

    Any advice you can offer would be much appreciated.

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  120. I have 1 ? how long can the executor hold the money in the bank after everything has been clear. tax to

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  121. Hello Lynne,

    I really hope that you can help our family.
    My father-in-law passed away 10 years ago and my mother-in-law passed away 5 years ago.
    There are 8 children in the family. One of them is married to a judge (the son-in-law) who is co-executor with one of the sons.
    She was very sick and was admitted to the hospital and was diagnosed with terminal cancer. She never returned home and died in the hospital 3 months later. She was very weak in the last month. A couple of weeks before she passed away, she signed a letter stating the beneficiaries of her most treasured possessions and the executors distributed the items very quickly. This separate letter was not witnessed by anyone. She also had a will.

    Our family that I believed to be so close was not the same after she went into the hospital. I felt I was in a living nightmare and there is far too much to explain in this post.
    Anyways, the letter (not the will) made provisions for mom and dad's cherished photo collection (literally thousands of photos) that most family members never had the opportunity to ever see. My husband (54 years old) never had even seen a picture of himself as a child
    .
    Mom left these priceless photos to the daughter who is married to the judge with the notation that the daughter would provide digital copies of all the photos to her siblings at a later date. That was 5 years ago.
    Finally a couple of years ago after letters were written to the executor, she developed a website and put some albums on it but not one of the albums was ever completed.
    5 of the 8 siblings refused to sign the final release because the photo project is not completed and they do not trust that it will ever be finished. Furthermore she has not responded to any of the requests by the family to even allow us to look at the albums. The executor who is the son was not even allowed to look at the albums when he just wanted to see his childhood photos.
    The judge executor has told the beneficiaries that the pictures do not form part of the estate and that we need to get these final releases signed. The judge's wife also has the siblings' baptism certificates, immunization records etc that we have requested and no response.
    She is in possession of these personal items as Mom moved to this daughters town and Mom's items were stored in the daughters basement.
    We are not even aware of many of the items and we fully understand that possession is 9/10th of the law.

    We would appreciate any advice that you could give us as we desperately want to receive our childhood photos that mean so much to us.

    Sincere thanks!

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    Replies
    1. Possession being 9/10 of the law has nothing to do with this.

      A letter distributing personal items doesn't have to be witnessed. Most lawyers, including me, encourage clients to prepare these letters because they reduce the number of disputes among family members.

      In my opinion, those photos are part of the estate. They might not have been distributed under the will, but they are still part of the estate.

      Your sentence about the woman married to the judge is ambiguous but I am reading as the woman is the co-executor, not the judge. If that is the case, then she is failing in her executor's duties.

      The dispute has gone far enough now that it's no longer about the law. The co-executor is probably digging in her heels because she is angry that the releases haven't been signed, and the beneficiaries won't sign because she won't post the photos. It's a stalemate.

      At this point, I see two options. One is for a family meeting (and I would suggest the judge and other in-laws do not attend). The purpose of the meeting would be to agree on a timeline and procedure. She should agree on a date by which she will finish the photos, and the others should agree that upon that being done, they will be happy to provide signed releases, again with a deadline.

      If you feel that people are too volatile for this, or too geographically far apart, try a skype or google+ video meeting.

      Your other option is to force her to finish her executor duties by taking her to court. This can be risky. For one thing, it will upset people. For another thing, the court may decide not to waste his/her time on something that adults should be able to resolve on their own.

      Lynne

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  122. Hi Lynne,

    Our mother passed on this spring, father a few years ago. We are both executers to the estate. We were preparing the house to list and my sister decided she doesn't want to sell until next spring. Bills etc.. are coming out of the estate account. I am at the moment at the house along with her and her boyfriend. I would like the house listed, if she does not want to sell and I would like to move out. I moved back from my home to care for mom and now the estate affairs. Should I be paying for bills, property tax, house insurance etc.. , should she and her boyfriend be paying the bills along with rent to me? Is there a contract I should have in place? Are there laws in place province to province? Thank you for your advice.

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    Replies
    1. I should clarify on the above, may be confusing. This is based on me moving out regarding rent and bills. Also if I want the house sold I believe there is a court disposition that can be granted to do so? Is there a year period where my sister can decide not to sell the house? thanks again..

      Delete
  123. Good day, Lynne!

    Is there anything wrong with assisting someone with changing their will? What I mean specifically is typing out a new will to reflect the changes that they want made to it. Of course, there would be two witnesses signing with the Testator as well.

    Nikki

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    Replies
    1. Hi Nikki,
      As a general rule, no, there is nothing wrong with helping someone with paperwork. However, it's not always that simple. Is the person doing the helping going to benefit from the changes (i.e. get something under the new will that they weren't going to get from the old will)? That can raise suspicions and perhaps a lawsuit. Is the testator (person whose will it is) elderly, frail, or ill, or in any other way vulnerable? Finally, has the person had legal advice about the effect of the changes? If they are small changes, perhaps no advice is needed, but if the changes amount to pretty much a whole new will, that might be a good reason for the testator to see a lawyer.

      Lynne

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  124. Good Morning Lynne,

    My father passed away last September and my mother (who he was divorced from) is suing the estate for ongoing spousal support and hidden assets. My brother and I are the beneficiaries and the estate is slowly being eaten away by astronomical legal expenses incurred from our mother. We are going to trial this Septmber against her but her past behaviour indicates that once the judge makes a ruling (likelyin our favour) that she will again appeal it and keep this going in the courts and with lawyers indefinitely.

    Our estate legal fees are above 200k now and climbing. We are only the beneficiaries and not the executors so we have no control over the Estate lawyers or my mother who has created this mess.

    My question is 1) How can we stop the legal fees from accumulating after the trial (when she goes for an appeal) Can we simply ask these Estate lawyers to put their pens down?

    2) Is there anyway we can get the judge to deny her appeal and make all of this nonsense stop?

    3) Can my brother and I ever get money back from my mother to pay for the accumulated legal costs that the Estate lawyers are charging?

    My father left a will and strict instructions for my brother and I to be the estate - how is it fair that we are not being protected and the only ones winning are the lawyers because of my mother?

    I appreciate your time Lynne as I feel desperate for some help and closure.

    Thanks,

    Michelle

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  125. My father passed away in 2012, one year prior to his death, my father told me my brother was stealing money from him(my brother is POA) and asked me if I could be POA. I have been living in Florida for the last 27 years and was not sure what to do.
    My father's brother was also co-POA and Co-executer but became ill with Alzheimer about 2 years prior to my fathers death in 2012. My brother was also executer and refuse to supply any accounting for of my father's estate. Long story made short, I hire an attorney but still have not been able to get audits of my father's estate.
    My father did show me his estate net worth in 2005 and there is significantly less at my fathers death. I am sure my brother has stolen several hundred thousands from my father estate over the years. Would this be something I can report to police as a crime?

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  126. Just wondering if anyone can tell me when a will is to be read after someone passes away and how long before distribution? My father passed away from ALS last June and my brother is the executor. There are 6 children in the family, but my beeotch step mother is giving my dad's things away to those that stayed in contact with her after my dad passed. I am getting nothing from her because she doesn't like me, but her son and his family and one of my sisters and 2 of my brothers have been given things as well as my son and nieces and nephews. Can she do this? I live in Alberta.

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    Replies
    1. I wouldn't expect a formal reading of the will to take place. In the almost 30 years I've worked in estate law, only one family actually asked me to hold one. They are not mandatory, nor are they even customary any more.

      You don't mention whether you are a beneficiary named in the will, and that makes a huge difference to your question. If you are a residuary beneficiary, you are entitled to have a copy of the will, and to your share of household items.

      If your step-mother inherited everything under the will, then she is entitled to give those things away to whomever she pleases, because they are hers, not your Dad's.

      When a couple lives together, the items that are for general household use, such as furniture and decorations, are considered to be jointly owned, so your step-mother would own them. The items that are considered personal, such as say a watch, jewelry, cufflinks, clothing, or perhaps a special collection or item, would be distributed under the will.

      Ask your brother what your status is under the will. If you are a residuary beneficiary, get a copy of the will ASAP to see whether the household and personal items are left in the estate. In Alberta, the executor is required to provide you with a copy of the will at the time he applies for probate, but by then it may be too late, in the sense that items will already be gone.

      Lynne

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  127. Hi Lynne. Thank you for your reply.
    As to whether or not I am a beneficiary, yes I am in the will as are my 3 brothers and 2 sisters. I was, up until about 3 months before my dad's passing, the executor to his will, but when he fell and got injured, we were on holidays and I could not be there to take him to the hospital, therefore my step mother convinced my dad that it would be best that the duty be passed over to my brother, (my dad's words). I know that there was furniture that was left to me in the will that belonged to my grandmother but it has been sold by my stepmother. So I guess I am SOL! Can anything be done to get any of my dad's personal things although she refuses to have any communication with me? Neither my sisters or my other 2 brothers, or myself, have any idea as to what is going on, and I have asked my brother (the executor), via email what is going on, but have heard nothing. Thank you for any advise you can give me. I feel so lost and frusterated.

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  128. Can the executor take costs for house insurance and land rates, real-estate agent fees and maintenance costs from the sale of a house property where the Will states that the proceeds of the sale of the house property should be distributed between beneficiaries?

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    Replies
    1. Yes. "Proceeds" should refer to net proceeds, I would think.

      Lynne

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  129. I'm trying to track down info on renouncing as executor.

    Specifically, a will was originally written in one province and that's where the named executor lives. The (now-deceased) author of the will lived in another province at time of his death.

    Executor wishes to renounce and have a family member handle the will instead.

    In which province does executor do the renunciation procedure: where deceased lived, or where executor lives? Or does it matter?

    If replacement executor (a family member and one of two beneficiaries in the will) agrees to act and has agreement of other beneficiary, does renunciation/replacement have to go to court, or is it sufficient for named executor to simply sign a statement of renunciation? Need to be notarized? Prepared by a lawyer?

    Thanks!

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  130. My uncle “Fred”, (died several months ago) and aunt “Wilma” (died a couple weeks ago) both recently passed away and have no children. My cousin, (let's call her Betty), refuses to produce a copy of a will she claims exists to the next of kin. Since my uncle “Fred” predeceased my aunt “Wilma”, the next of kin would be my aunt Wilma's siblings (my mother, Betty’s mother, and an estranged brother living in a foreign country). I believe that if there is no will the estate should be divided in 3 parts for each remaining sibling... and either one of the sisters should be executrix. If there is a will, it should be provided to the siblings. We have asked on behalf of my mother, but Betty refuses to produce a document. Betty claims to be the executrix but again refuses to produce any document stating she is named.
    There is real estate involved, and we aren’t sure what other assets or debts exist, but Betty claims that her mother was to get a fifth of the estate, Betty was to get money for being the executrix, and the rest goes to charity.
    Betty has the same relation to the Fred and Wilma as I do. Can I, as my mother’s power of attorney, step in on my mother’s behalf to represent my mother’s interest in the estate?
    What can we do?

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  131. HI Lynne , I hope you can help me ,,,,,my mom is in a nursing home my brother sold her house and took all her money she has now nothing to her name....just her pension that are going out to pay for the nursing home ,,,,I know that she made a will stating only my brotherbeing beneficiary .......my question is when time comes when she passes away who would be responsible to pay for her funeral expenses ,,,,will it be my brother ......thank youuuuuu

    ReplyDelete
    Replies
    1. Your brother sounds like one of those greedy people who rationalizes theft from his mother by saying "I'm going to inherit all of it anyway so why not take it now".

      We both know that when your mother passes away, there won't be any money left in her account to pay for the funeral. This is just one of the many reasons that kids are not allowed to steal their parents' money while the parents are alive.

      The funeral arrangements are the responsibility of the executor of the estate named in her will. I assume that is your brother.

      Lynne

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  132. Dear Lynne,

    If I was asked to provide maintenance of a property by the executor such as Gardening Services (Lawn Mowing & Tree Pruning), should I send the executor an invoice for fees if I am a beneficiary of the property proceeds? If another family member has been providing gardening work and using the property as a storage space for personal belongings, also being a beneficiary of the proceeds of the property, how does this affect a claim I would intend to make for Gardening Services I have provided? I understood it would be better if an executor left family members (beneficiaries) out of the administration I am asking about but it seems too late. If I should send my invoice for Gardening Services fee costs, I would need to act promptly with legal accounting terms of trade in mind, not after the property is sold and proceeds distributed between 5 beneficiaries. Any information is helpful at this stage. Thank you Lynne.

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    Replies
    1. As a general rule, any work that the executor contracts out to protect or improve the estate property should be paid for out of estate funds. In my view, this would definitely include the gardening services you've mentioned. The only issue here is whether the executor will now turn around and say that he expected you to do it for free because you're a beneficiary. As you say, it would have been cleaner had he not involved family members in this way, but he did, and it has to be dealt with. You've provided value to the estate and it should be compensated, so an invoice would be the best way to proceed. The executor would then have a record of expenses. I also agree that this should be done sooner rather than later so that it can be paid to you as a contractor and not you as a beneficiary.

      Lynne

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  133. Hi Lynne--

    Two quick questions, if I may:

    I'm a beneficiary in the estate of a family friend. The executor has sent the confirmation and release. It outlines the value of the estate but there is no accounting of any expenditures that may have been incurred in the settling of the estate. Am I within my rights to request this before I sign the confirmation and release?

    Second, the executor is also a beneficiary. The confirmation and release asks us to indemnify and save harmless the executor if any future claims or debts arise from the estate. Would this void the executor's responsibility as a beneficiary to make these claims and debts good?

    ReplyDelete
    Replies
    1. Certainly you have a right to request further information that is relevant to the accounts, as expenditures are.

      The release you are signing should clearly refer to the actions of the executor in his role as executor. It won't have anything to do with his role as beneficiary.

      Lynne

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