- 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.
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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.
ReplyDeleteWhat 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
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?
ReplyDeleteWhile 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.
ReplyDeleteLynne
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?
ReplyDeleteIf 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.
ReplyDeleteLynne
Lynne,
DeleteWe 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
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.
ReplyDeleteMy 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
ReplyDeleteThanks 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.
ReplyDeleteLynne
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?
ReplyDeleteHi, 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.
ReplyDeleteBest of luck,
Lynne
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?
ReplyDeleteYes, 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.
ReplyDeleteLynne
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.
ReplyDeleteHi Doug,
ReplyDeleteTo 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
Lynne,
ReplyDeleteYour 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 ?
Hi,
ReplyDeleteYes, normally an executor who pays an estate debt personally is reimbursed out of estate funds before beneficiaries are paid.
Lynne
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?
ReplyDeleteMy 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.
ReplyDeleteMARCH 15,2011
Hi,
ReplyDeleteI'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
Is there a standard rate for mileage, meals, etc that executors can claim when performing their executor duties?
ReplyDeleteAre there guidelines as well regarding this?
Hi there,
ReplyDeleteI 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
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
ReplyDeleteThis 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.
ReplyDeleteLynne
Hi Lynne,
ReplyDeleteMy 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?
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!
ReplyDeleteLynne
14 years ago, my father died without making a will.
ReplyDeleteThere 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?
What happens if the estate cannot pay the bills (Tax, Credit Card, landlord, etc..)?
ReplyDeleteMy 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?
ReplyDeleteLynne 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?
ReplyDeleteRe: grandmother passing away
ReplyDeleteThis 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
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%?
ReplyDeleteI 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?
ReplyDeleteAlso 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?
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.
ReplyDeleteMy 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.
ReplyDeleteHe 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.
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?
ReplyDeleteHi Lynne:
ReplyDeleteThank 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
Hi Sam,
ReplyDeleteThere 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
Dear Lynne,
ReplyDeleteMy 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!
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).
ReplyDeleteMy 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?
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.
ReplyDeleteLynne
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!
ReplyDeleteHi, 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.
ReplyDeleteHi 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.
ReplyDeleteCheers
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!
ReplyDeleteMy 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?
ReplyDeleteHi 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?
ReplyDeleteHow 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!
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.
ReplyDeleteDear 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?
ReplyDeleteGood Morning Lynne,
ReplyDeleteIs 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
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!
ReplyDeleteHello Extremely Stressed,
ReplyDeleteWhat 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
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.
DeleteEven 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!
Lynne,
ReplyDeleteMy 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.
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
ReplyDeleteYou 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.
DeleteIn 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
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.
ReplyDeleteSorry 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.
DeleteI 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
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?
ReplyDeleteWhat 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.
DeleteLynne
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.
ReplyDeleteDear Ms. Butler,
ReplyDeleteI 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?
Hi there,
DeleteYes, 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
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
ReplyDeleteRandy
Hi Randy,
DeleteIt 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
Hello,
ReplyDeleteOnce 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.
Hi Lynne:
ReplyDeleteI 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.
Hi. Im making a new blog post on Sept 24 2012 addressing your question, so please look for it there.
DeleteLynne
Dear Lynne,
ReplyDeleteMy 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?