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Friday, September 24, 2010

Is the executor obligated by law to provide a copy of the will to anyone who asks?

This is a question that I received from a reader by way of email. It's a question I hear a lot, so I thought I'd share the answer.

No, the executor is not required by law to give a copy to anyone who asks. Plenty of people who have no business asking will ask. Others who believe they have a legitimate reason to ask will also request a copy, though they may be mistaken about whether legally they are entitled to that. The executor is responsible for safe-guarding the deceased's private information.

The executor is in almost every jurisdiction required to provide a full copy of the Will (and supporting probate documents if he/she applies for probate) to residuary beneficiaries of the estate. These are the people who have a financial stake in the overall estate, and have the right and obligation to watch over what the executor is doing. They need to see the Will to do that.

Individuals are not entitled to have a copy of the Will simply because they are related to the deceased. I realize this is difficult for those individuals to accept, and difficult for the executor to enforce.

Beneficiaries who are going to receive a specific gift from an estate, such as a piece of jewelry or a specified sum of money are not entitled to have a copy of the entire Will either.

Others to whom the executor may provide with a copy of the Will are those who are in charge of transferring an asset that belongs to the deceased, such as the Land Titles Office, a Transfer Agent for stocks and shares, or Canada Revenue Agency. These people must verify that the executor is, in fact, the person legally entitled to give them instructions to deal with the deceased's assets. Also, the executor will provide a copy of the Will to the accountant who prepares tax returns on behalf of the estate.

2 comments:

  1. Unfortunately this question is only the start of the imbalance between the family of the deceased and a lawyer/executor. Lawyers being an unaccountable species of professionalism when acting as executors of deceased estates where large sums of money are involved must be made to be accountable to the family of the deceased. Not only by providing a copy of the will but also any other documents that they possess that will assist in determining the true wishes of the deceased. Lawyers who are executors should not be allowed to hide information under the guise of legal client privilege of the dead in order that they can essentially feather their own nests from the assets of the dead.

    Diarmuid Hannigan

    Author Lawyers or GRAVE rOBBERS?

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  2. I think you are confused on the roles of the executor and the lawyer. The executor is the decision-maker, and relies on the lawyer only for advice on LEGAL matters, not the matter of determining the true wishes of the deceased. If the true wishes are not clear from the Will itself, then the executor must rely on a judge to interpret it. Neither the executor nor the lawyer has the authority to do that. You mention "lawyers who are executors" but my experience over the last 25 years in this industry is that lawyers almost never accept executorship appointments. Maybe the situation is different where you live, but it's not a role that many of us want or seek out. We just do the legal work, and leave the estate administration to the executors. Perhaps before you accuse lawyers of feathering their nests, you should understand more about the role of the executor. You seem to think it's the lawyer who is running the estate, whereas in reality it's the executor. As I've often noticed, the complaints against an entire group of people (e.g. lawyers) are often rooted in misunderstanding of what that person thinks we are supposed to be doing.

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