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Monday, November 8, 2010

What if a beneficiary won't sign the Release?

An executor emailed me recently, asking what to do if a beneficiary won't sign the Release. I don't know the facts of the case, but this appears to refer to the Release document that is given to the beneficiary for signing at the end of an estate, accompanied by financial documents that explain what the executor has done with estate assets and liabilities and how he intends to distribute the estate. If the beneficiary signs the Release, it means that he or she approves of the financial accounting provided and will not be able to come back against the executor in the future about anything covered by the accounting.

When one beneficiary doesn't sign his or her Release, it means that  none of the beneficiaries can receive their inheritance.

If a beneficiary were to refuse to sign the Release, I would want to know why. Is there an objection to the contents of the financial documents? Is something missing? Does the beneficiary understand that he or she won't get any money until the accounting is approved (either by the beneficiaries or by the court)? Does the beneficiary object to the compensation the executor is requesting?

If you can find out where the objection lies, you can most likely address it. In many cases, a refusal like this is actually a request for more information. For example, say a beneficiary wants to know why the house sold for $450,000, but only $420,000 shows in the bank account. The executor could show the calculation that showed how much of the $450,000 was spent on realtor's commission, legal fees and payment of taxes. The executor could show the cancelled cheques for those expenditures. Perhaps the executor didn't do a very good job of setting out the numbers, or backing them up with receipts or statements.

Many executors who are acting without lawyers or accountants tend to give an "accounting" that is little more than the current bank balance, without explanation of what happened to investments, RRSPs, the deceased's car, etc. If that's what the executor is presenting, he or she shouldn't be surprised at the beneficiary not signing the Release. I wouldn't sign it either.

If the beneficiary is objecting to the amount of compensation that the executor is requesting, the executor might provide a breakdown of how he or she arrived at that number. The breakdown might include the number of hours the executor put in, the number of kilometres driven, or a list of all of the tasks that the executor had to take care of (this is one reason why executors are always advised to keep a diary or journal of all of their actions on behalf of an estate).

If the issue is compensation and a more detailed accounting isn't persuasive, the executor and the beneficiary may negotiate a different amount that satisfies both of them. If that doesn't work, the executor will have to ask the courts to set the compensation by court order. This takes longer and the beneficiaries get even less because the executor's lawyer is paid from the estate, but at least the issue can be resolved.

It's unusual for a beneficiary to simply dig in his or her heels and refuse to sign the Release without giving a reason or stating an objection, but it can happen. In the end, the executor will give up on asking for information that isn't forthcoming, and will ask a judge to approve the accounting.

143 comments:

  1. If we are a beneficiary of a specific gift (shares in a company that has assets), do you sign a release or just sign a receipt once you receive your shares and cash from the company? What if you end up requesting a passing of accounts trial? Can the specific gift be withheld until the trial is held?

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  2. An executor doesn't have to request that a beneficiary sign a release, but usually does so to limit his or her own liability. In the case of specific gifts, often an executor chooses not to request a release. In your case, though, it sounds as if the specific gift is an asset that a) is valuable and b)required some looking after between the death of the owner and the transfer of the shares.I would not be surprised if the executor asked for a release in that case.

    You mention a passing of accounts "trial", which suggests a court process of calling witnesses, examining evidence, etc. A passing of accounts can be done without a full blown trial. However, if there are disputes over the executor's use of the money, it could well be a full trial.

    If there is a trial, any gift of an estate can be withheld until all is settled. This is because some of the costs of the trial may have to be paid from the estate. If that's the case, the asset that might otherwise have been given to a beneficiary might need to be cashed in to pay the court costs.

    Lynne

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    1. I just received a Call from my ex wife with regards to our daughter's accidental death benefits. She said that I have to sign the release and that all the estate is going to her. My daughter had not named a beneficiary on her insurance and the Attorney general mention on their website that if there is no children or spouse that the estate is divided between the parents. She is refusing to give me my half. What recourse do I have as the father ?

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  3. As one who has refused a demand to sign what I considered to be a particularly odious release, I refer you to Brighter v Brighter Estate (1998) 81 A.C.W.S.(3d) 743 (Ont. Crt.) (Gen. Div)).

    It appears that a request to sign a release accompanying payment of distributable assets is appropriate but the holding hostage of such assets in order to compel an approval (ie the release) is manifestly improper.

    Following my refusal, the Estate Trustee(s) through their lawyer decided to go for a passing of the accounts, which is yet to occur.

    Personally, I think that a copy of the Brighter v Brighter quote from the decision should be required to accompany every request for a release. Beneficiaries should be provided the knowledge to make an informed choice and to understand that wills are written for beneficiaries - not for Trustees.

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    1. Can you post a link to the Brighter v Brighter court case? Or could you type out the quote from the decision where you have used the words"particularly odious release". Thank you.

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    2. I've now had a chance to look further into the Brighter estate. It is not being recognized by the courts as the final word on this issue, and in fact other cases have been decided in direct opposition to it. Here is a link to a lawyer's blog that discusses the Brighter case, among others: http://estatelaw.hullandhull.com/2012/09/articles/topics/executors-and-trustees/release-for-passing-accounts/

      (cut and paste into your browser)

      Lynne

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  4. Hi, thanks for your comment. I appreciate hearing from those of you who are currently involved in estates, either as executors or as beneficiaries.

    I like your description of the Release as "particularly odious". Unfortunately many executors really don't know why they are putting together an accounting, or what the Release really signifies. The Release contains a beneficiary's approval of the transactions carried out by the executor, and an indemnity for the executor having taken the steps that he or she took.

    Absolutely, beneficiaries must make an informed choice. Many lawyers would like to see Releases contain a mandatory certificate of independent legal advice that showed that the beneficiary was privately and adequately advised by their own lawyer about the effect of the release. But on a practical level, that would never work.

    However, I disgree with your comment that the inheritances are withheld for the purpose of compelling the beneficiary's approval. Keep in mind that the executor must always keep enough estate money at hand to pay all bills and expenses of the estate. If one of the beneficiaries were to dig in their heels and refuse to sign the release, the executor is going to have to do something and whatever that something is, it must be paid for out of the estate. If the executor had already sent out all the money to the beneficiaries, where is the money to pay the lawyer and/or accountant going to come from?

    In your own case, for example, the executor is going to apply to the court to pass their accounts. If there is a lawyer or accountant involved, or court fees to be paid, your cousin will have to pay for those bills from the money that is currently earmarked for a beneficiary.

    Take heart about the upcoming passing of accounts. The executor has saved you the trouble of getting it into court yourself. You and the other beneficiaries will have a chance to explain why you find the Release, which is based on the accounts, so "odious".

    I wish you the best of luck with this,

    Lynne

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  5. Dear Lynne: I am both an executor and a beneficiary. There are 2 other beneficiaries and both signed an Interim Release and Approval of Accounts about 10 months ago, at which time I gave out an equal share of estate assets to each of us after I had received the returned signed Interim Releases. At that time, I also waived all executor's fees and took nothing because I thought everyone was in agreement. I had only intended to take an executor's fee if I was out money for a marker, paint, plumbing contractors that were hired to fix up a property, etc. I held back estate funds based on the public account’s advice pending receipt of a final Clearance Certificate.

    A final release was then sent out to both beneficiaries at the beginning of Jan., 2012. Both beneficiaries signed and returned the final release to me. Then I was informed that 1 of the beneficiaries saw a lawyer who sent out a letter to the judicial court here and all lawyers involved requesting that the release be withdrawn based on she may have lacked the mental capacity to have signed it, and she didn’t agree with the release. I then attended the law firm around mid Jan, 2012, with the intent to pass accounts. However, I was asked to wait because the beneficiary whose release was withdrawn retained a different lawyer.

    Thus, a new revised final release was sent out requesting both beneficiaries obtain legal advice from a lawyer prior to signing. One of the beneficiaries returned the 2nd final release to me signed about mid Feb., 2012.

    This lawyer of the uncooperative beneficiary is arguing with the lawyer who questioned this beneficiary's mental capacity that she did understand what she had signed. He also put in writing that the beneficiary who won't sign suffered a concussion and memory lapses because of a fall she sustained sometime around the New Year. As well, he has been writing the beneficiary who already signed with attempts to get me to contact him directly rather than communicate with the lawyer that I hired to represent me.

    I was finally informed by my lawyer that the beneficiary was going to come down at the beginning of March, 2012, to sign the final release. That did not happen. Two weeks
    later I asked my lawyer what the problem was as to why the final release was not being signed. He told me he did not know and had not heard from the beneficiary’s lawyer. I was then given my options, one of which was to pass accounts. When I stated I wanted to pass accounts, the lawyer then told me he did not have the time or energy to go to court and that I was on my own.

    I called the law firm back and asked another lawyer if he would help me pass accounts, and I set up an appointment for a week later to begin the process. At that meeting, I was then asked to wait off another week and told that I would be promised an answer one way or another the following week by the beneficiary’s lawyer. That never happened. The beneficiary's lawyer is and has been evading my lawyer, and I am being left in the dark as to what the problem is.

    Does the Interim Release that both beneficiaries signed even count? It has been 3 months since the first final release. How much longer must I wait? The beneficiary’s lawyer isn’t communicating with my lawyer, and my lawyer doesn’t want to see me and the beneficiary who signed lose money needlessly. He says this will cost thousands of dollars and take months to fix. I am stuck and feel unable to finalize mom’s estate.
    Extremely Stressed!

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  6. Dear Lynne: I understand that the executor's lawyer gets paid out of the estate if accounts are passed at court.

    Does the beneficiary's lawyer also get paid ouf of the estate, if he shows up at a court hearing?

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  7. It's highly unlikely that the beneficiary's lawyer would be covered out of the estate.

    Lynne

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  8. Dear Lynne: I am now at the step of "passing accounts." My lawyer told me that the legal costs and court costs to pass accounts "cannot" come out of the remaining estate funds, and that I would have to get the approval of the beneficiaries first. Thus, he is submittting the paperwork on one document to the court with the final proposed distribution and remaining estate account total that was initially sent out on the final release to the beneficiaries. The court costs and legal fees are not taken into consideration with this accounting, even though I have requested that the costs to pass accounts come out of the remaining estate funds. I am quite confused why the court costs and additional legal costs cannot come out of the estate?

    Also, the lawyer stated that the Interim Release and Approval of Accounts which both benefiiciaries previously signed is not going to be brought to the judge's attention. I think it should be because I waived all my executor's fees on that approval, and that approval covered everything except the time period waiting for the Final Clearance Certificate. Thus, there was hardly anything remaining on the final accounting to be approved.

    I had also initially asked if I could take the estate accounts to an accountant and have it paid for out of the estate at the time of the Interim Distribution. I was told no because it was my responsibility to do all the accounting, including a summary of the accounting. Thus, I also ended up doing a great deal more work on this estate and photocopying all the receipts and bank statements, plus income tax of the deceased for the court, only to find out that the lawyer is not submitting it to the court. I also don't understand why I am not allowed to charge a fee for all the hard work that I have done if the Interim Releases are not even being considered.

    I don't understand, and the lawyer I have is not explaining it to me, except to say that the law firm has already charged what they can under the tariff guidelines. That is the reason he gave me that the beneficiaries would have to agree to the court costs and any additional legal fees first.
    I don't want a bill for court costs and additional legal fees that I might have to pay out of my pocket. Is it possible that the judge will make things right? because this doesn't seem right what is happening here.
    Extremely Stressed!

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  9. Hello Extremely Stressed,

    There's a lot of information flying back and forth. Let's see if we can make sense of it.

    The legal fees for passing of accounts can come out of an estate. However, usually you don't even need to pass accounts in the court unless the beneficiaries refuse to approve the accounting. Starting by asking for their approval is the right way to go, but if their approval can't be had, the matter might have to go to court.

    Your lawyer is right not to submit previous accounts if the beneficiaries have already signed off on them. The judge only wants to see the accounts that are in question. Your comment about waiving executor fees is a valid one though. It can be covered off by one simple statement in the submitted accounts to the effect that you've so far claimed no fee.

    I disagree in part with your lawyer's advice regarding using an accountant. Yes, it is your responsibility as executor to do the accounting, but within that responsibility it's usually acceptable, and perhaps even advisable, that an accountant be consulted. Money paid to a lawyer or accountant to do work that the executor is responsible for is usually deducted from the executor fees. Having said that, I haven't seen the will and I don't know if there was anything said to the contrary.

    The comment regarding the lawyer billing the maximum under the tariff guidelines is interesting. Normally a tariff sets out a guideline for getting a probate and other things necessary on probate files. It excludes things that are extra (e.g. litigation over a claim) or that are normally done by the executor (e.g. preparing the accounting). Getting releases is generally considered to be part of the usual or core duties on every estate. If your lawyer has to go to court to pass accounts, this would not be covered by the tariff, in my opinion, and therefore would be covered as an "extra" from the estate. You as executor will not have to pay that personally.

    As a practical matter, it seems extremely unlikely that if the beneficiaries approved of everything except waiting for the clearance certificate that they would have anything left to find fault with.

    Lynne

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    1. Dear Lynne: Both beneficiaries signed an interim release. One of the beneficiaries took on the estate early, and then signed her interim release under the "independent legal advice" of her lawyer. Both beneficiaries signed a final release; the unhappy beneficiary had hers withdrawn and the lawyer she had at the time questioned her capacity and wrote a letter to the court.

      A second final release was prepared because the beneficiary then consulted with a different lawyer. However, at the end of March, 2012, all communications had ceased and no reason was given as to what the problem was.

      The paperwork to pass accounts was prepared and sent out to the beneficiaries and the beneficiary's lawyer in June, 2012. On August 1, 2012, a judge gave the order for a court registrar to set a time and place to pass accounts. That date came in mid November. The unhappy beneficiary showed up at the courthouse with a friend and without legal counsel and she stated that her lawyer had not bothered to share any estate info with her at all and she claimed she did not know about the passing of accounts. Her intent, she said, was to consult with a new lawyer and file a dispute against the estate. Three weeks passed and the estate lawyer ended up having to write her lawyer to get a response. The beneficiary's lawyer could find nothing wrong with the accounts. It has now been well over 2 months gone by, and the estate lawyer promised me he would set another court appointment date and time.

      He took on the case and only charged the remaining allowable tariff fee based on the limit set in Saskatchewan. He feels he is now working for free because he can't charge over the tariff fees unless this should proceed to a court hearing. I don't understand the process of passing accounts entirely. I have tried to find resources online. I know this is definitely not fair to the lawyer, and I agree he should be paid more money. Am I allowed to write a letter to the judge requesting that? It is my understanding that court registrars don't mediate. As well, it appears that this unhappy beneficiary is now avoiding her own lawyer.

      I have been unable to get in touch with the estate lawyer who promised me that he would set another court appointment date and time. He has not returned any my phone calls or emails. Am I allowed to offer him additional money out of my own pocket? I believe that he is not putting any priority on this because he is being paid such a small amount, the remaining allowable tariff fees.

      I am concerned. This has been dragging on well over a year now. I have maintained impeccable estate account records. I was hoping that there might be some rules in which a beneficiary had a time limit in which to file a dispute against this estate in Saskatchewan? It has now been "well over a year" that this estate has been held up by this beneficiary, and she keeps changing lawyers in order to hold it up even more. How much longer must I give her to consult?

      I don't know what to do. I gave up all my executor's fees at the time of the iterim distribution because I was close to mom, and I would have done anything to get emotional closure. The accounts are all good. I kept impeccable records and all the lawyers are aware of it. I know the estate lawyer doesn't want to do this because he feels like he is working for free. What can I do? Can I pay him out of my own pocket to set things right? Honestly, something needs to be put in place to help executors who run into a situation like this. There needs to be rules set at the court level, too, I think in order to prevent a beneficiary from holding up the final disposition of an estate with no good reason, as well as, holding up the accounts from being approved. I really need to be absolved from this. There needs to be something put in place to avoid what has happened here. I still don't know what the supposed dispute is against the estate; I am very confused.

      Stressed!

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  10. A family member died months ago and this week the executor advised me that I am the beneficiary of a life insurance policy. As well, I was told that therefore I will not receive my share of the estate. Comments?

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  11. Hi there. You need to see this will. Being the beneficiary of a life insurance policy WILL NOT automatically stop you from getting anything from an estate. They are completely separate transactions.

    I can think of only one way that this situation could happen. The will would have to specifically say that you are being left the policy instead of a share. In that case, of course you wouldn't get both. But it would have to be specifically spelled out in the will.

    The executor and the other beneficiaries do not have the legal authority to decide that it's "more fair" if you don't get both the policy proceeds and a share of the estate. That's not their call.

    Lynne

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  12. Dear Lynne: Can a court clerk sign a court order or other document passing accounts for a judge? meaning that no judge's signature would be on the document?

    Also, the estate lawyer informed me a few months back that he would inform me as to when the court appointment date and time was set to "pass the accounts." To date, I have NOT received any information or set court appointment date or time. Should I have received a court appointment date and time when the accounts were being passed?

    Also, should the court order/document state that the accounts have been passed?

    Extremely Stressed!


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  13. Hi Lynne,

    If any beneficiaries refuse to sign the release, how long does it take to get this approved in court? Do you have a basic timeline (3 months, 2 weeks etc)

    Thanks

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  14. Hi, Lynne. I am an executor and a beneficiary. There are 2 other beneficiaries. They both signed an interim release and a final release. One of the beneficiaries then had the final release withdrawn, and the lawyer who had notarized it sent a letter to the court questioning that she may have lacked the capacity to have signed it. This beneficiary then returned to the first lawyer she had retained (a different lawyer) who had helped her with the interim release and signing of that. Her lawyer informed my lawyer that she was willing to sign another final release; thus, a second final release was prepared.

    Three months later, the beneficiary still had not signed another final release. Her lawyer ceased communications with my lawyer and no explanation was given as to what the problem was.

    The paperwork to pass accounts was started on April 30 and sent to the beneficiaries and the court the first week of June. In Saskatchewan, I was informed that the time frame in which beneficiaries or interested parties can object to an estate is 30 days. At the end of the 30 day period, my lawyer informed me that NO objection had been filed against the estate with the court.

    At the end of July, the estate lawyer informed me that all we had to wait for was a court appointment date. Then in mid September, I had still not been informed when that court appointment date was to happen.

    On October 2nd, the estate lawyer informed me that everything was approved, and there was no need for a court appointment date. I attended the law firm on October 4th to pick up the Order, but the lawyer then told me that it had been sent back to the court clerk for signature because there was no date or signature on it. He was going to get me a copy the next day at the courthouse, which he was unable to do because the file had been sent out for final appraisal and approval.

    I don't understand the process of passing accounts. This estate has now been held up 9 and 1/2 months: 4 and 1/2 months waiting for the beneficiary to sign another final release and 5 months waiting for the court.

    I was told that because no one filed any objection against the estate that there would be no court hearing. I am confused, though, as to the steps involved in passing accounts. The lawyer who took this on in the firm to help me to pass accounts at the courthouse is an articling lawyer who has never done this before.

    About how long should the process take to pass accounts in Saskatchewan? Should I have been informed of a court appointment date? or perhaps that is still to come? I have asked the lawyer these questions, but I have not heard anything back. I am in much need of final closure from this estate because I am trying to forget the traumatic circumstances surrounding my mother's death; I found her decayed body 2 weeks too late, and her front door had been smashed in. According to the lawyers, I have done everything right; my accounting is all good, and that is all I have to absolve me from this estate. I also took no executor's fees because the beneficiaries had threatened to take me to court if I did. It didn't matter anyway because I ended up having to pass the accounts anyway. About how long should the process of passing accounts take? Thank you.
    Extremely Stressed!

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  15. The information was helpful, thanks for sharing your knowledge of accounting. http://www.quonassociates.ca

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  16. Hi Lynne,

    A questions in terms of Estate Accounts. My Husband and I, we're separated; and according to the Lawyer, my name has been remove to the Wills, then he died 3/yrs. ago. Can a lawyer, distribute an Estate Funds, without notice to a legal Wife? besides few accounts was still legally held Jointly?

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  17. Hi Lynne,

    Just found the page - great resource!

    One thing I cant figure out from the above is whether a trustee who has been replaced (out of preference only, with no allegations of wrong doing or mismanagement) is entitled to require a release of liability for all their actions when they were a trustee.

    I have reviewed the earlier trustee's accounts, and all looks fine (to me... but I am not an accountant), but it is a large trust and I am reluctant to sign a release of liability for all actions taken by the earlier trustee when they were acting as trustee.

    The trust document itself absolves them of any liability from the moment they ceased to act as trustee, but signing the full and final release for their actions when they were trustee seems (to me at least) to be a bit much. What if 6 months from now an impropriety from last year is discovered? I'd have no recourse if i sign the release.

    I would rather avoid a passing of accounts in the courts if possible, but this comprehensive release against liability for the earlier trustee's past conduct seems (or seemed at least, this thread has provided some insight as to the other side of the argument) to be a bit much.

    Is the trustee (who is a company, not a person) right to demand a retroactive release for all actions that it took while acting as trustee? I dont think they did anything wrong, but i wouldn't necessarily know!

    Any thoughts would be greatly appreciated!

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  18. Hi Lynne. I am an executor of my mom's estate, and I think that the beneficiaries should be allowed to see all the accounting: bank statements, receipts, and all income tax filed, etc., and to request that. I think that is a beneficiary's right. I have learned that there is something called a summative accounting that outlines all the debts, credits, and other. At the same time, I also think an executor should be allowed to charge something for copying and costs because it is very time consuming to have to make a copy of original receipts if there was a lot of work that needed to be done. I was not allowed to take any executor's compensation. I was threatened by a beneficiary that if I took one cent, she would sue my ass off in court.

    Well, it didn't really matter, because after putting all my time into managing the estate and paying for estate costs out of my pocket, and then taking no executor's compensation, I am now passing the accounts through the court.

    I think if an executor has done something wrong then there has to be consequences. I have done nothing wrong and am therefore passing the accounts through the court voluntarily. I simply want to be absolved from this estate. There was a lot of grief and trauma involved for me with the death of my mom, and I can hardly wait until the court absolves me and ends my duties as executor.

    As for the difficult beneficiary who has caused this estate to drag on and on for over a year with no good reason, I hope that the court will deliver its consequences. This beneficiary has gone through a few different lawyers, and told the court registrar at the last court appointment date, which was to pass the accounts, that she did not have a lawyer and her previous lawyer had not bothered to share any estate information with her at all, so she did not know that the court was passing the accounts. The estate lawyer sent her lawyer copies of all the receipts, bank statements, and income tax records, plus informed her lawyer as to when the court appointment date was. She requested to see yet a another lawyer at the court appointment date, which was allowed by the court registrar.

    It irks me that the estate lawyer was never informed as to her previous lawyer withdrawing his services.

    Then the estate lawyer copied more estate information and had it sent to her new laywer, also costly.

    Her new lawyer then told the estate lawyer that he could not find anything wrong with the accounting. Now, I am waiting for the estate lawyer, who seems too busy to return any of my phone calls or emails, to set another court appointment date to pass the accounts with the court registrar, seeing as how no dispute has been filed against the estate.

    The estate lawyer was only able to charge a small remaining tariff amount to pass the accounts. Thus, he is putting off setting another court appointment date because he isn't getting paid anything to do what he considers extra work. I am really really stuck now and don't know what to do. One of the beneficiaries who signed her final release asked me if I could offer him more money out of my pocket and she would pay a little once she receives her remaining share of the estate only. I don't see how that would be fair to me. I'm stuck. I really think that all the estate lawyer's fees and additonal court costs should be paid out of the remaining estate funds.

    This estate has been held up 13 months now by the difficult beneficiary, well over a year, and I'm concerned as the executor as to how much longer it will take. There are two other beneficiaries, and I am also a beneficiary, not just an executor. I would have gladly given my job as executor to someone else who would have wanted it and the work that went with it. I took the job on because someone had to make the funeral arrangements and it was my mother's last request she would ever make of me.

    Can the court contact the estate lawyer and force him to take action since he has already been paid to help with passing the accounts?

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  19. Hi Lynne: It has been well over 3 weeks now since the estate lawyer promised me he would set another court appointment date with the courthouse re: passing of estate accounts. He tells me he has been unable to get in contact with the court clerk because he is too busy. I am very concerned as the estate exectuor as to how long this process is going to take to get another court appointment date. The estate lawyer wanted to charge more money, but he only charged the remaining allowable tariff fees in order to help me pass the accounts through the court. Otherwise, he stated this would have to go directly to a formal court hearing in order for him to get more money, which he stated because the accounts were good and in order, he didn't want to do.

    What can I do? It has been well over a year now that one of the beneficiaries has held up the final disposition of this estate, and she has not bothered to tell anyone why, including her lawyers. Last I heard this difficult beneficiary's last lawyer has had difficulty contacting her. He stated he could not find anything wrong with the accounting; thus, he was going to explain it to his client.

    Therefore, no dipsute has been filed against the estate. I am concerned if the estate lawyer has been too busy to set another court appointment date in the past 3 weeks, what is to make the next 3 weeks any different? What can I do? Do you think the court will eventually contact the estate lawyer once a few months have passed? OR Am I allowed to contact the court myself? I should mention there is another beneficary who signed her final release, and she is pressuring me to get this done, in order that she can receive her final share. This beneficiary tells me she desperately needs her remaining share. I feel really bad, but at the same time I need closure.

    Stressed!



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  20. Hi Lynne. I am an executor and have been trying to get the estate accounts passed through the court. The estate lawyer told me that I did everything right. I hired contractors to get the estate property to building code. I hired a real estate agent to help sell the property to ensure that we got a fair price for it. I hired a public accountant to prepare all the income tax returns. I maintained and kept all receipts, bank statements, and income tax records.

    Both beneficiaries signed an Interim Release and Approval of Accounts, so we all received an equal share of the estate funds. We were all listed as equal beneficiaries in mom's Will. There was hardly anything remaining to be approved in the accounting pending receipt of the final clearance.

    There are two other beneficiaries and I am also a beneficiary, not just an executor. One of the beneficiaries has now held up this estate for over 14 months and she used lawyers to do it. She discontinued seeing her previous lawyer 8 months before the court appointment date to pass the accounts, and neither the estate or its lawyer were informed. She told the court registrar that her previous lawyer had not bothered to share with her the passing of accounts information that was sent out to the other beneficiary and her lawyer by the estate lawyer when the paperwork was filed with the court.

    Now this beneficiary is avoiding her new lawyer. He has not been able to get ahold of her. According to the estate lawyer there was absolutely no dispute filed against the estate at all.The beneficiary's new lawyer told the estate lawyer that he could not find anything wrong with the accounting.

    This beneficiary's lawyer wants to attend the next court appointment date in case his client should show up with yet another lawyer or on her own. The court registrar had also made it very clear with this beneficiary that she was to inform her own lawyer if she no longer required his legal services. Then her lawyer could inform the estate, via the court rules. That has not happened; therefore, the estate lawyer is assuming that her new lawyer is still acting on her behalf.

    I don't know what is going to happen now. What if this beneficiary decides to fire her newest lawyer? Will the court registrar allow her to consult with yet a fourth lawyer?

    I am very frustrated with being unable to see any solution to this unless the court registrar takes over and just decides to pass the accounts.

    The estate lawyer will only represent me as the executor of the estate, and not as a beneficiary because he told me that would be considered to be a conflict of interest. I have tried to call a few other lawyers on my behalf as a beneficiary to get some legal advice, but all of them have told me the passing of accounts in Saskatchewan in the past 10 years is virtually an extinct process because most people are capable of logic and reasoning.

    This beneficiary who is doing this has a history of drug abuse, suicide attempts, and mental illness. She has no appointed guardian or trustee, but tells people that she is cognitively impaired and therefore does not understand. That is how she continues to get away with this behaviour.

    The other beneficiary who signed her final release wants her remaining share and this to be over with too. She also doesn't understand with no dispute being filed against the estate how this has gone on and on for over 14 months.

    Is there any other way I can step down as executor? I have asked the estate lawyer and been told no. I wish to be relieved of my duties as executor. The court has all of the accounting and my signed affidavit. All the money is there. Every penny is accounted for. I took nothing, not even executor's compensation. I think of mom all the time as her estate has no closure. I have also been seeing a psychologist to help me with the stress because mom's passing was extremely traumatic. What can I do to be relieved of my duties? I also feel I have no rights as a beneficiary. Thank you.

    ReplyDelete
  21. Hi Lynne. I am the executor of an estate. I lost the original estate lawyer because he had surgery and then withdrew his services from me on the phone because he chose to cut his hours back part time. I was given no notice in writing or anything, but I was given a substitute lawyer who I did not know was an articling lawyer to prepare the final releases. The articling lawyer forget to affix an affidavit of execution, and it caused another final release to have to be prepared and signed by the beneficiaries, except one of the beneficiaries decided not to sign a second release, after she had the first final release withdrawn. I was accused of preparing the final releases on my own, but it was done through the estate law firm; I did not prepare them. When the original estate lawyer returned to work, he told me that he could no longer represent me as the executor of the estate and I should find another lawyer on my own. No one was recommended, so I called the substitute laywer back and he said yes. I did not realize that the substitute lawyer was an articling lawyer.

    It is my understanding as to what the articling lawyer told me that he does not represent me as executor of the estate. I have no rights. I am presently trying to pass the accounts through the court. The other beneficiary's lawyer is now attending the next court appointment date, and no dispute has been filed against the estate.

    My accounting is all above board and the unhappy beneficiary has always had her own lawyer representing her share of the estate, including when she signed an interim release.

    I would like to consult another lawyer to find out if I have the right to be protected as an executor due to the fact that my accounting is all good. I also took no executor's fees. I was told that because the estate lawyer only charged a small remaining allowable amount of tariff fees that no more money can be paid out of the estate unless this goes to a formal court hearing. If this goes to a formal court hearing, it will be much more costly against the estate.

    Do I have the right to consult another laywer? Do I have the right to legal counsel as the executor of the estate? There are 2 beneficiaires, and I am also a beneficary, not just an executor. The other beneficiary contacted the articling estate lawyer who phoned her back and also emailed her. My emails and questions were ignored by the articling estate lawyer. He told me that he does not represent me per say, but that he represents the other two beneficiaries as he was hired by me to represent the estate. One of the other beneficiaires hired her own lawyer. How is it that the articling estate lawyer does not represent me as the executor of the estate? I think he should have called me or answered me before contacting the other beneficiary. He never answered my email at all.

    I would like to consult another laywer as an executor for legal advice? I have done nothing wrong, and I believe that I have the right to be protected legally as the executor. Please tell me if I can pay for a laywer out of my own pocket? I feel I have no other option. I don't understand what is expected of me at the process of passing of accounts. The articling lawyer told me that I am on my own. I don't know what that means: on my own. This articling lawyer has made mistakes, and I fear that he has it wrong it terms of my legal rights as executor of the estate.

    Stressed!

    ReplyDelete
  22. Almost Homeless: What if a beneficiary won't sign the Release?

    Dear Lynn,

    My father over two years ago, and I was really devastated and went into a depression. Now I'm two years later, and as a result I've lost my condo, went into debt, and forced to move in a small apartment- which is fine.

    I just found out by Revenue Canada that the reason they haven't released the estate assets to the beneficiaires is because one beneficiary hasn't signed his release, and its been over a year. I'm not being evicted and have been experiencing more debt and I don't know what to do. The beneficiary that won't sign isn't communicating or returning calls to all family members, and I don't know what to do!

    Is there a way to proceed without his signature? Or is there a way I can get a small sum of my portion to pay bills and find a place to live?

    Please help, I'm in dire need... :(

    ReplyDelete
    Replies
    1. If a beneficiary won't sign a release, the next step is to have the accounts passed in the courts. When the judge says the accounts are ok, the beneficiaries' signatures are no longer needed.

      I'm not sure you have the facts right, though. The releases are not sent to CRA, so I don't think the lack of releases is the issue as far as CRA is concerned.

      Who is the executor of this estate? I thought it might be you since you said you'd talked with CRA about the estate, but that can't be the case if you didn't know about the releases. It's up to the executor to push this through.

      The executor is allowed to make an interim distribution of some portion of the estate while he/she waits for the clearance certificate from CRA, which might be very helpful to you. Again, it's up to the executor to do this work so you might have to try to light a fire under him or her to get this moving.

      Lynne

      Delete
    2. I and the common low husband are the executors of the estate. The clearance cert. has been obtained from the CRA. I am looking to have the other exec sign a release that he his satisfied with all transactions pertaining to the will. The estate lawyer says that it is not uncommon that each exec sign off. The other exec refuses and will not deal with the estate lawyer any further probably because he does not want to pay any further legal fees. I am requesting this for my own protection against any litigation which he has threatened in the the past. There is no substance to his dissatisfaction according to the estate lawyer. The other exec has been extremely difficult and abusive. As mentioned before ninety five percent of the will has been distributed. A certain amount was kept aside for income tax purposes and other expenses The final income tax has been received and is now in the estate account and the clearance cert. is now in the hands of lawyer.

      Delete
    3. I agree that it isn't uncommon for executors to release each other, and it sounds as if in this case you might have good grounds for wanting one.

      If he won't sign, your only recourse really is to pass your accounts through the courts. You might mention to him that this will be paid for our of the estate. Some people just don't care about being reasonable and use an estate as an excuse for inexcusable bad behaviour.

      Lynne

      Delete
    4. Thank you Lynne
      This information is valuable to me. It has gone on to long and I want to get on with life. I have all the documentation needed medical reports clearance cert from CRA post funeral expenses of which he will not honor and proof that the bank had to freeze his personal banking acc. until he deposited the death benefit of twenty five hundred along with the final income tax return into the estate acc. This took six months for him to comply. Just to give you another indication of his personality when my mother was being transferred from long term care to palliative care two years ago (her pain could not be managed any longer in the LTC facility,) rather than follow he went immediately to the bank and put a stop payment on the next withdrawal from the nursing home. It would have been reimbursed to him through normal process. He never did appear that day in emerg. Money became the most important issue for him. I never did see him again that day

      I will follow your advice and proceed to file with the courts. If you wish to give me a further tip just to get started it would be appreciated. I assume that going through the estate lawyer would be the most logical as the courts would probably guarantee his fee from the estate without the other exec signature.

      Delete
  23. What if it isn't the accounting, but rather the wording of the Will?
    For example,where it might say "the share of the estate belonging to beneficiary X shall be held in trust by the executor [etc.]"

    I happen to be that "X" and I do not like the idea of my share being held in trust. I am living on disability welfare income, due to a physical and NOT a mental disability. There is no good reason for this to be done to me, but apparently that is what the benefactor wrote in the will.

    Do I have recourse? Should I refuse to sign the Release until this is cleared up?

    ReplyDelete
    Replies
    1. Hi,
      If the will says that your share is to be held in trust, there isn't anything the executor can do about that. He can't legally just give you the money. So in a way you're asking him to do the impossible.

      The purpose of the release is to agree that the executor has taken care of the estate according to the will. Your objection is not to what the executor has done, but to the terms of the will, so refusing to sign the release would not achieve your purpose.

      Lynne

      Delete
  24. I am an executor of my mother's estate. The other exec. is her common law husband
    He is eighty three years of age. Ninety five percent of the will has been distributed. She died July 12, 2011
    Because of extreme verbal abuse and his lack of knowledge of the process, along with his lies and threats of a law suit against me (of which there is no substance), I have asked for a final release from him stating that all disbursements and issues have been satisfied. He fails to recognize the estate lawyer any further and will not sign any such papers. I do not want to leave my self open to any litigation what so ever. This relationship is very volatile. He is extremely angry that my mother was placed in a long term care facility (for her own safety) from him. This is a result of improper medication dosages given by him resulting in seizures and tremors twice. He fails to admit any wrong doing and was not cooperative when doctors tried to train him in regards to her home care when and if released. Long term care became the only option recommended by the doctors. I have medical documentation to prove the facts.
    Your comments please
    I will not be able to finalize the estate with out him signing off

    ReplyDelete
    Replies
    1. This really is a very difficult situation, but you can in fact finalize the estate without his signature. You can ask the court to pass your accounts, and give the history of the volatile relationship. It seems to me that this man may be suffering from some degree of incapacity, as well as being emotionally volatile, and it might be in everyone's best interests if you don't worry him further with estate matters.

      Lynne

      Delete
  25. Hello Lynne,
    The problem I have is that all of us beneficiaries have been sent a release, which we have signed. All of us except for one. That one individual has received an accounting of the estate, has verbally responded with having no issues with that, but has "no time" to sign, and has been this way for over 3 months. The person has time, they're retired, fish, go to the lake,etc. so it's an excuse due to being upset over another family issue that doesn't have any relation to this. What would be your suggestion of how to deal with this? The lawyer had mentioned ways around around an obstinate person,and I'm curious as to what that may be, and if this will be a long drawn out process. Thank you in advance for any insight into this sticky situation!

    ReplyDelete
    Replies
    1. It doesn't necessarily have to be long and drawn out. I would probably put a deadline on the person who hasn't signed the release, and let them know that if they don't sign it by then, I'll be passing the accounts in the court and asking the judge for costs of the application to come out of their share.

      Lynne

      Delete
  26. Hi Lynne,

    What is a reasonable amount of time to provide a beneficiary to sign a Release before passing the accounts to the court?

    ReplyDelete
    Replies
    1. I assume you're talking about someone who hasn't voiced any particular objection to the accounting but is just dragging his feet. I would suggest a minimum of 30 days. The maximum might depend on the circumstances. If someone has been travelling or has been very sick, obviously you would allow more time. It seems to me that someone who's had the accounting for 60 days and just hasn't got around to the release just isn't going to co-operate and it's time for a frank discussion about passing of accounts.

      Lynne

      Delete
  27. Hi Lynne,
    I'm a beneficiary to one of my parents' estates. The lawyer and executor of the estate was in contact with me and my siblings within a year of her death with regards to the estate and distributed some money to three of us at that time. We asked to see the accounting as we understood that the trust hadn't been dealt with and there were other beneficiaries on this as well and wanted to understand how the amounts were calculated for the release we were provided to sign. Asking on our own, it seemed we couldn't get an accounting. We went to a lawyer and it took forever to get an accounting that ended up really being a stack of photocopied papers that made no sense and calculated nothing. I'm not sure how that is an accounting. Frustrated that we felt perhaps they were just crooked (and I cared more about them swindling than actually getting the money itself) we simply chalked it up to the fact that they didn't have an accounting and signed off on these releases and walked away. Two years have passed and a letter arrives out of nowhere now stating we perhaps have been overpaid. I'm confused, and frankly think this stinks. It was accompanied by no accounting or detailed explanation and further when we signed the previous releases we were told we were the ones holding up the process of distribution of that time for the other beneficiaries. They wrote this letter asking us to sign off on the fact we were overpaid (even though they aren't asking for anything back) but my question is why.. and why would we need to do this?
    --Confused.

    ReplyDelete
    Replies
    1. If you've been overpaid, that's the executor's problem, not yours. If they'd had a better accounting, they might have actually known what was in the estate and done a better job of it. The reason they are contacting you now is that if the estate is short on funds and needs to pay taxes and expenses, the executor will have to come up with those funds personally. Of course he is hoping that you'll give some back, because if you don't, he has to find it himself. But understand it's HIS mistake and HE is the one liable for it, not you. I don't think you need to give it back, although you could always discuss it with a local lawyer if you want to.

      Lynne

      Delete
  28. My brother and sister are the executors of my mother's will. They are all in Canada, while I am living in the USA. I was not present for the reading of the will, so I never got my own copy of it. When I requested my copy, my sister sent me her copy, along with a letter that said I would get my copy when the estate was settled, and everything was complete.

    That was 7 months ago. I didnt receive anything else till the other day, when I got a 'final accounting' and my release form. The accounting looks 'suspect', at best... what are the odds that the amount to be split between all 8 beneficiaries would be an even $250,000 ?

    It bothers me that there is no mention of what happened to my mother's furniture, personal effects, car, or life insurance policies.

    I dont want to sign the release. What do I do?

    ReplyDelete
    Replies
    1. Sorry, that amount *should* read 'an even $200,000'.

      The entire estate was valued at $250,000 and $50,000 of it got used up for funeral costs, taxes, moving fees, food, etc.

      Delete
    2. You don't have to sign the release unless and until you are happy with the accounting. Make a list of the specific questions you have and send that in writing to the executors. You're right that the round number is a bit coincidental. If you don't sign the release, they will either have to provide the information you want or take it to court to ask the court to pass their accounts instead.

      Lynne

      Delete
    3. I didnt sign my release, and no one asked why. imagine my surprise, 3 weeks later, when i found a check in the mail for my share of the estate.

      Delete
    4. I expect that means that the executor decided there was little risk in not insisting on you signing one. It's perfectly legal for an executor to pay a beneficiary without a release, though generally it isn't a good idea. Perhaps in your case, the executor feels that matters were simple enough, and his or her work was transparent enough, that no release was needed. Either that or he wasn't up for a fight :)

      Lynne

      Delete
  29. Dear Lynne

    i am the beneficiary of my father's estate along with my brother and sister. The executor is my Uncle, we are at the stage where we have been asked to sign the release. My brother and I are refusing to sign, The statement I received for the estate was an excel spreadsheet with very confusing details a Check for 15000.00 as a repayment for a loan to my Uncle no proof he owed him money like that and there was no bank statements,cancelled checks and or anything but his typed list. He also already took a 7.5% executors fee from the estate before any of my father's debts were even paid including the mortgage, he has taken almost 42000.00 already from an estate that was only about 70000.00 after his debts were cleared. what do I do here? this does not seem right to me. I am sure my father is rolling in his grave over his brother's behavior. I would rather have my dad over the money but I am sure my father would not want me to let him get away with this.
    missing my dad

    ReplyDelete
    Replies
    1. Normally an executor's accounting does not include cancelled cheques or bank statements, but if you ask for them, they should be supplied if they are necessary to clear up questions. An Excel spreadsheet is a reasonable way of presenting accounts, but not if the details are confusing as opposed to explanatory. Have you asked for better records? Refusing to sign is all very well but that won't fix the issues.

      You said the executor's fee is too high based on the net value of the estate, but what was it based on the gross value of the estate?

      If you ask for better details but are still unhappy with the accounting, or if your uncle refuses to provide them, then your only option is to apply to the court to have his accounts passed (i.e. examined) by the judge.

      Lynne

      Delete
  30. Can a beneficiary refuse to sign a release indefinitely if not satisfied that the portion of the will being received by that beneficiary is fair? If not, what is the time limit?

    ReplyDelete
    Replies
    1. Sure, a beneficiary can dig in his or her heels and refuse to sign. There is no specific time limit. Normally when it becomes clear that the issues between an executor's accounting and the beneficiaries simply cannot be resolved, the executor would apply to the court to have the accounts passed by the judge.

      Lynne

      Delete
  31. I am the executor of my fathers estate. There are $250,000 of expired Canada Savings Bonds that list my brother and I as the right of servivorship. He is un-happy with his share of the will, is well-off and says that he will not sign the bonds until I give him more from the will. Is there any way that we can force him to sign or does it just come down to the last one standing?

    Thanks for all your work here. It is very much appreciated. I'm sure it helps hundreds of other people who you never hear from.

    ReplyDelete
  32. Where does one get these release forms? Must they be drawn up by a lawyer or is there somewhere else an executor can get them? Thank you in advance.

    ReplyDelete
    Replies
    1. Releases are often prepared by the estate lawyer, but they can be prepared by the executor too. You didn't mention which province you are in so I can't provide a direct link, but the forms are prescribed by the provincial laws. Go to www.canlii.org, and click on your province on the left hand side. Search under statutes and regulations. If you can't find what you're looking for, let me know which province it's for and perhaps I can find a link for you.

      Lynne

      Delete
    2. Hi Lynne,

      Thank you so much! I am in Alberta. It's very kind of you to reply.

      Delete
    3. Hello Lynne,
      Would you happen to have a site I can refer to for the Release form for Quebec residents. I searched the WWW.canlii.org and couldn't find any kind of template.
      Thank you!
      This site has been very informative.

      Delete
    4. So far I haven't been able to find one online either. If I do, I'll be sure to let you know.

      Lynne

      Delete
  33. Hi Lynne Your advise is amazing.
    I'm a beneficiary last night I receievd 100 pages of accounting to review and the Lawyer for the Executors wants the Realease and indemnity form signed and sent back today. they want to do an interim distribution of accounts and are withholding a significant portion back in case of something happening. I would like to take some time to go over the 100 pages of accounting. I would like answers to things. they are holding us hostage and won't pay out the funds unless I indemnify them right away. Seems improper to hold us hostage. I told them I'd like the word indemnity removed from their forms as I can't indemnify the Executors until I have time to review. they are pushing me hard. I don't agree with their standard indemnity form. Can I scratch out and initial what I don't agree to, and scan and send that to them?
    I would appreciate hearing your thoughts. My father passed in Victoria BC, and I live in Alberta. Nothing special in his will. My brother and Sister had POA before he died and were both executors of his will. Neither had any experience doing this work so consulted a lawyer to do all this work for them. They get paid as Executors and the lawyer also gets paid. Seems like we are paying twice for the work that should hve been done by one group. Anyway. Im more concerned with "can they hold us all hostage if I refuse to indemnify them right now? Thanks so much Lyne.

    ReplyDelete
  34. This article a lot of details the what and why of estate planning in Canada.thanks for sharing.

    US Waivers For Canadians

    ReplyDelete
  35. The will in question has the estate at 13 shares, 1share for one sibling the other 12 divided by 3 siblings. the 1 sibling is not addressing replying directly, but the spouse is, which is not mentioned in the will what so ever. The sibling has not sign off on the release, and the LAWYER/EXECUTOR has first said that this is not a issue, as the funds are in trust and his share will be held in trust, now he is saying that this cannot be done. what steps can the LAWYER/EXECUTOR (which wrote up the will) can take, or what can we do to expedite this?

    ReplyDelete
  36. There are 3 beneficiaries on an IRA account. Two beneficiaries showed up to close the account and divide three ways. The bank refuses to close the account and said all three beneficiaries must be present at the same time. My sister refuses to show. What can I do? This is in California. Thank you

    ReplyDelete
  37. I'm a beneficiary, the only one. I was sent a will and have been waiting for the last five years for the estate to close, never getting any information from the trustee although I wrote him quite a few times. Now I get a release statement from his lawyer with a final amount of what I'm supposed to get and what he's asking for, he wants 17,5 percent plus accounting fees and lawyer fees he's charging me. I wrote his lawyer that I will not be able to sign the release because I never got an accounting and I would like one. Since then I haven't heard anything. It's been 3 weeks. Should I wait or should I get a lawyer?

    ReplyDelete
  38. A friend who lives in BC was served with an application to apply for probate in Saskatchewan. This question is about what an impoverished, disabled person can do in this situation. He can't afford to travel to Sask for the trial date or hire a lawyer.

    When the friend's father passed away in 2010, his adult siblings discovered that their parents had mirror wills. According to the executor's own materials, the three siblings determined that some changes were needed to the will, in particular, to remove the friend as a beneficiary. The Affidavit of Plight and Condition states, "We determined at that time that we would make these changes to the existing will in ink, have our mother sign attesting the changes...". So, four days after the father passed, the three siblings scratched their brother's s name from the will, and had mom initial the changes in front of one witness, who is the common law spouse of a beneficiary (a grandchild). Mom was 87 years old and this was four days after her husband died.

    The siblings didn't even tell the friend their mom had died until compelled to do so by the court. They have done everything to keep him in the dark about all of this (and no wonder!)

    So the friend is out $20,000 or so if the altered will is accepted by the court.

    Can a person in this situation make and file an affidavit instead of appearing, because he can't possibly appear or respond in person due to disability, age, and impecuniosity?

    Would the police help in a situation like this?

    ReplyDelete
  39. How much of a time span will a beneficiaries lawyer give the trustees lawyer to hand over an accounting before going to the courts for a passing of accounts

    ReplyDelete
    Replies
    1. There is no hard and fast rule that will apply to everyone. More time should be given where the trustee has been unable to deal with it - say because he or she was in the hospital, or on a business trip, or something else beyond their control. Assuming nothing like that applies, I would suggest allowing 30 days. This will give the executor time to look up any missing information, or replace any missing paperwork such as bank statements. It gives enough time for the executor to review it with his or her lawyer or accountant if they want to. It seems to me that more than 30 days is excessive, but as I said, there is no solid rule.

      Lynne

      Delete
  40. Very informational site, Thank you. I have a question that I haven't read about in your blog, is a lawyer obligated to respond to another lawyers professional letters?

    ReplyDelete
    Replies
    1. Yes, one lawyer is required to respond to another lawyer's letters. Our Code of Conduct specifically addresses this, but it doesn't state an amount of time, only that it be "reasonable". When a lawyer does not respond, the other lawyer may, if he wishes, contact the Law Society to complain about the lawyer who refuses to communicate. Some lawyers don't like to do that (myself included) but sometimes it's the only way to get someone to respond.

      Lynne

      Delete
  41. Can an executor who is also a beneficiary take executor's fees? Do executors in this case waive their fees on moral grounds or because it is the law that they must? Thanks

    ReplyDelete
    Replies
    1. Yes, the executor/beneficiary can take an executor fee as well as his or her share of the estate. The executor gets a fee for the work, risk, responsibility, and effort. This is a separate role from being a child of the deceased, who gets a share of the estate simply for being related to them. Sometimes family members will waive the fee, but there is no legal or moral requirement for them to do so.

      Lynne

      Delete
  42. Hi
    Ms Butler...thank you for your generosity in sharing. I wish you could help me in Niagara Falls. I can't believe what is happening to me re an estate. Q I am told that I can only get half of Trustee Fees allowed because I am also a beneficiary. Called double dipping?

    ReplyDelete
  43. How long does the whole process of passing of accounts take? Application, court date, etc.

    ReplyDelete
  44. What if one person is refusing to sign because of a personal issue with another beneficiary? Purely to spite the one person (who also happens to be one of 3 executors) but is holding everything up for several people? Not contesting in any way at all. just not signing (and in no hurry to sign)?

    ReplyDelete
  45. Hi, Lynne.

    Can a judge's order approving executor and legal fees at an interim passing of accounts be overturned at a subsequent or final passing of accounts? In my case, fees were awarded for the transfer of all estate assets whereas the major asset was being held hostage by the executor. Now several months later, the executor still refuses to transfer the house unless I sign a release. I feel he's in contempt of the court order to transfer it.

    ReplyDelete
  46. My wife is the beneficiary of her mother's estate along with her three siblings (youngest being the executor). Right from the set go the executor has been combative and very non-transparent, After having to re-file probate (none of the beneficiaries were told why just that there had been third party interference), probate has been granted and the executor is looking for a final release. At death, the executor held a joint account with his mother, none of which was reported in the probate documents and the executor refuses to answer how much he pocketed (not to mention he's tasking full compensation). We're hesitant to sign the final release without knowing why the original probate application was refused and due to the account being joint we're assuming he can pocket all the funds with no repercussions. Your thoughts please. Oh, this is an estate in Alberta.

    ReplyDelete
  47. i am co trustee and we hired a lawyer to do the financial end. there are 10 beneficieries and 1 of has written back wiwth a 2 page letter demanding all kinds of things, which is fine but this person said that distribution to others should take place quoting the Brighter case. Can we distribute part of the estate to those that have signed off
    thankyou

    ReplyDelete
    Replies
    1. The Brighter case discussed whether an executor could extort a release from a beneficiary by withholding a distribution of the estate until the release was signed. In that case, the court said it was improper to withhold distribution just for the purpose of getting a release for someone. Yes, you can distribute the estate to those who have signed off, but make sure you keep enough back to cover any possible future legal and accounting costs.

      Lynne

      Delete
  48. we are in a dispute in regards to a estate and the other executor is requesting bank statements for 2 years prior to the death. is this reasonable to me it is none of our business, can they force the issue

    ReplyDelete
  49. we are in a dispute in regards to a estate and the other executor is requesting bank statements for 2 years prior to the death. is this reasonable to me it is none of our business, can they force the issue

    ReplyDelete
    Replies
    1. An executor is entitled to step into the shoes of the deceased and to have access to all relevant documentation. I would guess that the executor asking for statements is checking to see whether funds have disappeared, or have been put into accounts he or she hasn't found yet. I do think it's the executor's business.

      Lynne

      Delete
  50. Hi Lynne.
    I wonder if you've come across this situation before.
    My wife is the major beneficiary (60 percent) of her mother's estate. She is also the executor.
    There are two grandchildren who are also beneficiaries (20 percent each.)
    The estate consists entirely of bank accounts held jointly by my wife and her mother, so no probate was required. The bank simply paid the entire amount to my wife.
    My wife then deposited the money with a lawyer so that he could distribute it in an arms-length manner. (There was considerable acrimony in the family in the past, so she wanted to handle this professionally.)
    The lawyer sent release forms to the two granddaughters. The eldest signed and returned the release. The youngest granddaughter, who lives abroad, has not.
    She has not given any reason; she has not, in fact, communicated with the lawyer or my wife at all.
    Two months have passed since she received the request to sign the release, but she continues to ignore it.
    The eldest granddaughter keeps promising to contact her sister and obtain the signed release. But nothing happens. She refuses to provide any explanation.
    What can we do? Can the youngest granddaughter hold up the distribution of the estate indefinitely simply by ignoring it?
    Thanks.

    ReplyDelete
    Replies
    1. Perhaps you could contact the Public Trustee to see whether they'd be willing to consider the granddaughter a missing beneficiary, and to hold the funds on her behalf.

      Lynne

      Delete
  51. Hello,
    Thank you for all of this great information! What if the
    release has been signed by the beneficiary, but the tustee will still not release the estate funds?

    ReplyDelete
    Replies
    1. Most of the time, the trustee will not distribute funds until he has releases from all of the beneficiaries. This is because the release is based on the calculations included in the executor's accounting, and if one of the beneficiaries contests the accounting, more funds will have to be spent. This will mean a re-calculation, and a new accounting.

      If in your case the funds have not yet been distributed, it is most likely because one or more of the other beneficiaries hasn't yet signed his or her release. You will probably find that someone has asked for further information or clarification of something in the accounting.

      While it's usual for the beneficiaries to cut the executor some slack here - since the executor, after all, cannot force a beneficiary to sign the release - this can only go on for so long. If the executor and one of the beneficiaries come to an impasse that cannot be resolved between them, you can suggest that the executor pass his or her accounts in the court instead. Yes, this costs the estate money but at least it breaks the deadlock.

      Lynne

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  52. Hello,

    We have been trying for a year now to receive all the original bank statements from the estate trustees. That is because there has been several errors found in the final accounting that has decidedly benefited one side of the family and whom are also the Executors controlling the estate. So we then hired a lawyer and they have since changed the accounting but they still haven't coughed up any bank statements and are asking us to sign a release first ..... before we receive such statements. The errors in the accounting were not insignificant, amateurish fudging, and totaled close to $100,000. That breaks down to approximately $30,000 more received per beneficiary for our side and about $30,000 less for their 'per' side. Our lawyer doesn't believe we will find anymore 'manipulations' within the original bank statements and is sort of encouraging us to sign. But we think we should hold out and see it the final accounting entries and original bank statements(one of us is a Chartered Accountant) are congruent because often where there is smoke, there is fire. What would you do in this Mexican standoffish style case?

    Thanks in advance for your thoughts!

    ReplyDelete
    Replies
    1. If trustees are fudging the accounting and withholding information, and matters can't be resolved by negotiation, you have two options. One is to hold a mediation, which is basically a without-prejudice, open meeting with everyone present to try to get answers. The other is to go to court and ask a judge to force the trustees to hand over what you want. Obviously neither of those options comes with a guarantee that you'll succeed.

      If your lawyer is encouraging you to sign, he/she probably thinks this is the best accounting you're going to get, and that signing is your best option. Maybe you need to have a conversation with the lawyer just about these options so you can make a decision. Be aware that you can't rely on the estate to pay your legal fees for the passing of accounts.

      The courts don't want to get involved in things that adults should be able to resolve between themselves, or petty things. But I agree that $100,000 is significant.

      Lynne

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  53. What happens when there is no will, parents are divorced where assets have already been divided during the divorce and an RRSP is claimed by the ex? Should this not go to the estate and frozen until all debts of the estate are paid in full? What are the legal ramifications of this situation?

    August 13, 2015 at 12:31 PM

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    Replies
    1. If the ex has claimed the RRSP, this probably means that she was named as the beneficiary of it. Otherwise, it would not be paid to her. Even if there had been a will, the RRSP would still go to the beneficiary named. You are correct that assets of the estate must be held in the estate until debts are paid, but if an RRSP has a named beneficiary, it's not a debt of the estate. Same goes for life insurance that names a beneficiary. The money was never part of the estate. Assuming she was named beneficiary on the RRSP itself, what she has done is legal.

      Lynne

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  54. Lynne, my father passed away in May. He added me to his accounts over thirty years ago, so when he was away, I could look after his affairs. I never touched the accounts unless my father asked me. Upon his death (within 3 days), my sisters asked me on a phone call if he had funds to cover any expenses. I advised them, there needed to be an estate account open and all expenses needed to be paid only with a receipt. I do not know what happened after that, but basically I was being accused of not giving up his funds, that the joint accounts were in jeopardy. The one executor I heard on that call say, " she is going to be trouble" The one executor has come at me with a vengeance, asking only me to return all gifts and any items my father held at my house or gave to me over the years and place in a safety deposit box. My father left items at my house over the years because he trusted me. When I asked the executor why I was the only one being asked to give things up, I was ignored. Many of my sisters have belonging of my father at their homes.
    I later found out one sister was holding a family heirloom and without asking me if I wanted it. she gave it to a cousin. Never once mentioning she had it. The executor phoned , I answered, he asked for my husband, he wanted my husband to tell me to close accounts and give money to lawyers. That was a week after my father's death. I was never allowed to grieve I was only bombarded with accusations. My husband is the second executor and the other my brother in law. Even my husband gets no where with the other executor.
    Can I sue the one executor and refuse to sign off on my father's estate. I have no idea what has become of his personal belongings.

    ReplyDelete
  55. I was told by the deceased person there was a 2nd account, an investment account, but the Executor says there's only a savings account? The deceased person also told me that there was a property that is not showing up. The Executor has no explanation for what happened to that property. Is there a way to search for other accounts or real properties that the deceased person possessed and left to me in the Will as sole heir?

    ReplyDelete
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    1. There's no easy, one-step way to find assets, but the executor should be searching thoroughly, since he's been alerted by you that there are other assets. Make sure you tell the executor everything you know about the assets. For example, do you know the address of the property? If you did, a title search could be done very quickly and cheaply. The executor should also try searching the land titles registry by the deceased's name, which to my knowledge cannot be done everywhere but is worth asking. As for the investment account, do you know anything about it such as which bank held it? The executor might have obtained all available information from the bank at which the savings account was held, but did he check other banks? I don't mean other branches of the same bank, but other banks. I have found that most people have accounts at more than one bank. There are other clues, if necessary. For example, was the deceased receiving OAS or CPP? If so, where were they being deposited? Also ask the executor to check the deceased's tax return for last year, as the investment account probably generated a T5 slip.

      Lynne

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  56. My father-in-law passed away and we finally are at the 'settlement" phase with ½ going to his daughter and ¼ each to my son and daughter (in trust) respectively. There is a $30,00 hold back. My father-in-laws sister and her husband were the executors and erred when they refused to honour my father-in-laws wishes that there be no funeral at all stated in his will. Even after pointing it out to them, they refused and charged $10,000 for the funeral and did not even include my husband in the planning. The executors also received $15,000 for their fee but failed to act in a responsible manner and were in conflict with overriding the will. They probated the will, and then retained a wills and estate firm to handle the legal distribution of the estate as set out in the will. Having just received the "accounting" and fees claimed by the lawyer, we were absolutely shocked when their bill totalled almost $50,000 for the estate distribution valued at approximately $450,00!!! Also, we have asked to be appointed guardian in trust of our 16 year old daughters share of the estate which she receives when she turns 18. We do NOT want to pay this lawyer any more money to "administer" her trust account and prefer to choose, as her parents, the investments which will best suit her needs. We talked to a lawyer about these issues. He charged us $6,000 to date and has done absolutely NOTHING to actively address any of these issues. Any suggestions are very appreciated. Thank you!!

    ReplyDelete
  57. I have been sent release forms from a bank asking me to sign off on funds from my parents estate. I know the bank has only communicated with one of the two required executors. There is an Estate account with a lawyer, so why would the non beneficiary funds not go to the estate account. Some of the beneficiaries are under the age of majority and according to the will, their funds are to be held in trust and one executor has made a decision to give the funds to their parents. I do not understand how one executor and a bank can do this, without the second executor or the lawyer.
    The will is being administered in Ontario

    ReplyDelete
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    1. The bank can't give anything to the lawyer without instructions from the executor. As for talking with only one, you are correct in assuming that both executors should be involved. It could be that the two executors told the bank that one was handling it and the bank could deal just with that one. It could be that the bank has tried a number of times to communicate with the second executor and can't get an answer. As long as the bank pays the funds to the estate, they aren't going to get into trouble for only dealing with one executor. That's a problem for the executors to figure out. The second executor is the one who needs to step up and insist on being involved. I don't think I have all the relevant facts here, but this is the best answer I can give based on what you've said.

      Lynne

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  58. Do I need a witness to sign a release and consent form. What if someone agrees to witness me sign it, so I sign it, but they understandably decide to not be a co-signer??

    ReplyDelete
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    1. Yes, generally a release form requires a witness.

      Your question is confusing. Being a witness in no way makes anyone a co-signor. All they are is a witness, i.e. someone who says they saw you sign it.

      Do you mean that they'll watch you sign but they won't sign the paper saying they saw you sign? If so, that person is being both paranoid and annoying. Find someone else to be the witness.

      Lynne

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  59. If a beneficiary refuses to sign a consent and release but still receives and accepts the amount given to him under a will by the executor (the executor having released the funds without a consent and release), what is the limitation period (if any) for him to claim more money against an estate?

    ReplyDelete
  60. Can I refuse to sign a release letter from a lawyer, when the executor ignores my requests for the status of my parents personal belongings

    ReplyDelete
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    1. Yes, you can. The effect of you signing the release is that you would be giving approval of everything the executor has done. Obviously you don't approve since you have unanswered questions. However, a refusal like this can result in a stalemate, so look around for something to prevent that. For example, could you suggest a meeting among family members to deal with the question of the personal belongings? If the question is never answered, your final option is to force the executor to pass his accounts in front of a judge, where you would have a chance to raise your issue.

      Lynne

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  61. Hi Lynn ,So my grandmother died in 2012. Shortly after we were sent a copy of her last testemontary and will. It stated she left 30,000 to each of her 4 granddaughters one being me in trust. My father quickly told us we would be getting nothing. Now it's 2015 all the sudden we are contacted saying we will get 9200 each. A email with a strange document was quickly sent by the executors my uncle and father. I went to have it notarized and when I read it something seemed wrong. For one there was no heading from an attorney. It said county of .... Which was not the county she resided in or her estate was executed in. The first page that was missing being numbered page 1 was a release and discharge of executors. Page 2 read we were waiving our rights to a judicial accounting. Page 3 was for signatures page 4 was missing and page 5 was for signatures. I didn't sign it I called the county surrogate court which it stated the letter was from and in fact it was not from that court and they told me you sign the release and discharge after you receive your monies. That court also had nothing on file with her name. I called the county surrogate court which she resided in and they had her file number and only the will was filed. They also said they have no idea about the forms as they don't have any forms like that from their court. My uncle insisted I send it back to him when signed I asked why not send it to the attorney he said no send it to me I will bring it to the attorney. Then I call the attorney she said she is no longer involved in any matters of this estate her job was done. She however said she did my uncle a favor and wrote those documents after she was done with all matters since my uncle needed it in legal terms. So I asked her to explain the letter they wanted me to sign. She said read it it clearly states everything. I said well if it's so clear and my uncle is pretty intelligent why would you need to write it for him but I can easily understand it? She said call him she has no more to do with it. So this attorney wrote this letter after she was no longer handling the matter and wrote it to seem like it was from a court. So I asked for the accounting. It was very strange that my uncle added it in there to put himself 27,000 for a "personal loan" why would a woman with over 100,000 in liquid assists need a loan like that. And it seemed there were several charges made to her credit card after her death. 2 atm withdrawals for $400 each. They paid landscapers that were hired after her death but yet the company is no where to be found. There are numerous checks written but doesn't say to who. My father and uncle told us the only reason we would get 9200 each is cause they forfeited their 5,595 each for commission. The accounting showed they were not forfeiting their monies and that didn't change the 9200. Also I'm pretty sure the 30,000 each was put into a trust and that is no where to be listed on this accounting. My sister and I refuse to sign this and now we r getting numerous threats from my father non stop harassing emails texts to us and also my fiancé. It seems it's lie after lie and I've been doing a lot of research and everyone including the courts and attorneys are saying something is really fishy. My father is now telling me he paid himself and my uncle and my cousins and if I file to have a judicial accounting they will use my 9200 to pay for an attorney. Something is seriously wrong here and I'm going to file to have them compell the accounting. The will states they are to pay her unsecured debts and funeral and any bills from her last illness then the granddaughters get their money. It said something about we can ask for money at the age of 21 and until 30 is when we can have our money. My father and uncle do not get anything until we get our 30,000.

    ReplyDelete
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    1. You didn't actually ask me a question, so I'm not sure whether you just wanted to vent, or if you really do want me to comment. In any event, I choose to comment.

      You need to make the distinction between what is "fishy" and what is not. The fact that you are unfamiliar with a process does not make it fishy. No, these documents don't come from the court. They always come from the executor. There is nothing fishy about that. Also, there is nothing strange about the lawyer no longer being involved, as obviously she was hired only to do the probate application and nothing else. That's a standard choice. I also don't find it strange that she prepared a release, as in my mind that is strictly a legal document that should be done by a lawyer. So, in my opinion, you should let all of that stuff go, as it really is not odd.

      Now, on to what IS fishy. Missing pages and missing sums of money are suspicious. Threatening the beneficiaries to force them to sign a release is fishy. I think the best thing you could do is apply to the court where the will was filed to get the executors to pass their accounts. I doubt you\ll get any answers any other way.

      Lynne

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  62. Thank u sorry I guess it came out more of a vent than question. My concern with the release is that a. Why is there a release and also a waiver and since she did write them why did she refuse to explain it. And why would she write them after she was no longer handling the matter? Why were they written to look like they came from a court as the paper stated at the top
    "State of New York surrogates court, county of Suffolk"
    She resided in the county of Nassau. Also the executors said they needed to go to the attorney but don't want me to mail them to the attorney and if the attorney is longer handling the matter why would they even need to go to her. As far as the 27,000 personal loan there's no documentation on it I was told there was an understanding it would be paid back from the estate but if she was mentally able to ask for it and amended her will 1 year prior adding an additional 20,000 to the 4 granddaughters why did she not change her will and why would someone who had 100,000 in liquid assets need a loan. Also question is the commission fee based on the estate before or after debts are paid? My father is also telling me they distributed everyone's funds and if I contest it they will use my funds to pay for an attorney can they even release and funds and can they only use my share for the attorney. Is there a time limit on settling the estate? She passed 2/2/12 and nothing was settled till October 2015 her house was sold or given back to the bank due to a reverse mortgage in 2014 and they only had the house on the market for a few months so I think having a house phone and other things from the house still accruing bills 2 years after she passed is a bit rediculous and the credit card charges and Atm withdrawals don't make much sense to me either.

    ReplyDelete
  63. Dear Lynne,

    My dad's wife passed away several years ago and left her half of their house "in trust" with my dad until his departing. At which time her half is to be distributed to her children.

    I am the executor of my dad's will when he passes, which includes the house. Does that mean that I am also acting as executor of her will too and need to distribute the funds to her children after the sale? And does that count as a double executor responsibility?

    Thanks.

    ReplyDelete
  64. My father in law passed away in Ontario last December. My husband and brother have always had a contentious relationship. My brother in law is the executor to the estate. My husband has received very little communication regarding the estate or the assets, and only did when he contacted the lawyer working in behalf of his brother in June. After reviewing the intermediate distribution, my husband had questions regarding the amounts and expenses listed. He hired a laywer to respond, asking for specific accounting details (statements and receipts). The letter received back, contained no details, veiled threats of further legal action and other inconsistencies. If my husband waits for the executor to file a passing of accounts with the courts, does he need to be present to have his concerns raised? Does he need to hire a lawyer to file an objection, or is that necessary? Would the court be privy to the correspondence between them, or would my husband need to file that? I appreciate any assistance you can provide.
    .

    ReplyDelete
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    1. If there is a court appearance, your husband can either appear himself or be represented by a lawyer, in which case he would not have to be there. I think in this case it would be better if he hired a lawyer, simply because the process is a bit complicated. The objection is generally in the form of an affidavit presenting your husband's questions and issues. Most likely the correspondence between them, or at least some of it, would be included in your husband's affidavit, assuming he wants to make the point that he requested information and didn't receive it. Affidavits and court processes are a lot easier with a lawyer to help you.

      Lynne

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  65. My father died in Ontario in 2013. His lawyer is the estate trustee. My 2 sisters and I are the residuary beneficiaries. I live in the US. At the time of death the 2 currencies were at par. I asked the estate trustee to purchase and hold FOR ME from estate funds a certain amount of US$, which was something less than we estimated that my share would be. He did that. I have many e-mails showing our "deal."
    At the time of the interim distribution 1 year later, he paid me from the fund of US$. He also asked all of us to sign a general release, which said that the release would be a "full answer and defence" to any claims arising from the estate administration. I understood that to mean the administration UP TO THAT POINT as shown on the account that he gave us then.
    He has now made a final distribution of all assets. But this time he SOLD the US$ fund, at a considerable profit, and gave each of us an equal amount of CAD. He did not circulate a proposed plan of distribution as he did before, nor a release. When I complained about not getting "my US$," he pointed out that I had released him.
    I don't think it's fair that my release over a year ago should cover future acts I knew nothing about. What do you think?

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    1. I agree with you. Generally a release is given for the period covered in the accounting you were given. You can't release the executor for actions he hasn't yet taken.

      Lynne

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  66. I am a beneficiary of an estate along with my two siblings, one of whom is the personal representative (executor). Can she pay herself an executor's fee without having a release signed by all the beneficiaries agreeing to the amount? Should the estate lawyer have issued a cheque to her without a signed release? When we questioned him about it, he advised us that she told him that her fee was presented, discussed and approved by the beneficiaries, which it was not, so he took her word on the matter and issued the cheque.

    ReplyDelete
    Replies
    1. Executors can only pay themselves from an estate if a) the beneficiaries agree, or b) a judge orders it. The only exception to this rule is that a will can say an executor can "pre-take" a fee. Usually only the wills appointing trust companies actually mention pre-taking.

      I can't find fault with the lawyer. The executor is his client, and it appears that he told his client the requirements, i.e. that the beneficiaries must agree. She told him that had been done. Generally lawyers do not require their clients to prove each and every thing they say on an estate, as it supposed to be a relationship of mutual trust as they work toward a common goal. She lied to the lawyer, who it seems to me acted in good faith.

      Don't forget the lawyer works for the executor, not the other way around.

      Lynne

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  67. Cemetery plots
    My father passed away and left two cemetery plots, unused. He was buried in another cemetery. The executor asked if anyone wanted to buy the plots. I have a connection to my home town, so I said I would like to purchase. Now two of my sisters have also decided they want to buy, but they have not lived in our home town for over 40 years and neither one of them plan to be buried there. There was talk about them selling the plots and splitting their profit between them. One is the wife of the executor. Now the executor is suggesting all three names should go into a hat and draw for ownership. I know my sisters have no intention of keeping them. What can I do.

    ReplyDelete
    Replies
    1. It seems to me that the executor is doing exactly what he should, which is resolving the issue using a method that gives everyone involved the same chance of success.

      Lynne

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    2. Thanks Lynne, the one thing I find disappointing, they keep going on "let's keep the two plots in the family", but their intent is to buy cheap from the estate & sell for a profit (split by the two vs all beneficiaries (over 10)). I offered the stated price and only want one of the plots for personal use. (cemetery has stated they can split them)
      Some of us even suggested selling them on the market so all beneficiaries benefit and to prevent more hard feelings, but the executor and my two siblings (one being his wife) have put up road blocks to prevent this from happening. There are over 10 beneficiaries to consider not just his chosen few.
      They even argued over additional cemetery plots at another cemetery, that belonged to my grandparents (two of their sons (our uncles)still living. Thank heaven, the Cemetery sided in favour of the uncles.
      They said some very nasty things to me, when I sided with the uncles.
      Drawing from a hat appears to promote their bad behavior. This executor in my opinion, has gone out of his way to manipulate the will to meet the needs and wants of a few not the many.

      Delete
  68. Hi Lynne,

    This matter is a little unusual. The Estate is over 30 years and funds have not been distributed to any beneficiaries due to family discripencies. Some of the beneficiaries have now retained a lawyer and are requesting an accounting from day one. Unfortunately, the executrix can not find all the necessary banking statements and invoices paid to complete same. We have tried going back to the bank and utility companies but they do not have records that far back and the Estate lawyer at the time has also destroyed his file from that far back. What happens? Is there a Statute of Limitations for this accounting? Please advise.

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    1. Wow, 30 years. If I understand you, this is not because funds were put into a trust that was supposed to be long, but because the executor just didn't do the work.

      Because the estate is still open, the executor is still on the hook to explain and account for her actions. She isn't protected by any limitations because she has never finished the job. Wouldn't want to be her if this accounting goes to a judge.

      Lynne

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    2. Wow is right, but the Executrix has done her and has kept the funds invested. Family members have stopped her from completing her job as they will not sign necessary documents.

      Delete
    3. In that case, maybe the executor should be the one to bring the accounts to court. If the court approves her accounts, she doesn't need any signatures from the family.

      Lynne

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  69. HI Lynne, This question probably goes to another one of your posts that were full. I was named a Residuary & Non-Residuary Beneficiary in my Aunts Will, as well as my siblings and cousins. It states we receive personal objects as well as 1/9 of the residue of the estate. We received these documents from a law office back in July and it was because my Uncle (Brother/Executor) had applied for a Grant of Probate. Her Estate was her Pension Funds and at the time she didn't have any documents leaving it to a Beneficiary but a couple months ago we found out that my Uncle had found a document stating it was left to him and it was pulled from Probate. I had also heard from my another Aunt that he was keeping the money since it was left to him. My question is if we are named in the Will to receive 1/9 of her residue estate; can he just keep the Estate money if he was named as beneficiary in those pension documents? Thank you,

    ReplyDelete
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    1. Assuming that the pension document is valid, then yes, he can keep the money. Any asset that directly names a beneficiary is NOT in the estate and therefore never becomes part of the residue. Even if he accidentally included it in the inventory of assets, this does not make it part of the estate.

      Lynne

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  70. Hi, Nice blog...thanks in advance for taking the time to reply !

    I am a newbie executor for an estate in NS. There is a house involved so I'm told I need to probate the will. The will includes a "right to sell"...do I still need to probate ?
    Also, the deceased has a new car that is worth less than the outstanding loan, can the creditor take the car and would the remaining loan be part of a unsecured creditor debt ?

    ReplyDelete
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    1. Hi Newbie,
      Yes, you will still need probate. The right to sell that you mentioned will however, mean that you don't need the permission of the beneficiaries to the sale.

      With respect to the car, if payments are not being made, then yes the creditor can repossess the car. And yes the rest of the loan could well be held against the estate.

      This being an executor is fun, isn't it? ;)

      Lynne

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  71. what about a beneficiary repeatedly making false claims about non-existing assets that delays the whole probate process?

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    Replies
    1. Yes, that happens. Beneficiaries often have mistaken ideas about what assets exist, or their value. What you do about it will depend on what part of the process you have reached. As I said in my original post, if you've pretty much wrapped up the estate and you're ready to pay the beneficiaries and finish up, then the best way to deal with a suspicious beneficiary is probably to ask the court to pass your accounts. That involves you showing the court everything you have done with the estate. It usually has a long lead-up process in which documents are exchanged, and that usually reveals whatever answers the beneficiary is looking for.

      Another process you might try at pretty much any stage of the estate is mediation. You might want to think of it as a sit-down meeting with a neutral party (i.e. not the lawyer for you or the beneficiary) to exchange information. The beneficiary will have a chance to talk about the assets he or she thinks are missing, and you'll have a chance to show all of the searches and information you've used to create your inventory. It's a lot cheaper and faster than going to court and might help move things along.

      Once you've made all reasonable efforts to satisfy the beneficiary's questions, if they don't believe you, and you're still stale-mated, you'll end up going to court just so you can finish the estate.

      Lynne

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  72. Hi, my father past away 6 months ago an left a savings account that specified how it was suppose to be divided up to 8 beneficiaries, we all signed the release of the account which was supposed to be divided up accordingly and beneficiaries mailed a cheque. Some how my fathers wife got the full amount of the money and created 2 accounts, 1 for her half, and the 2nd for the other beneficiaries and stated to us that it was in her name and nobody is going to receive anything until she dies.
    I don't get how she got the full amount of what was in the account when her and us 7 beneficiaries all signed a release saying it was supposed to be divided up and distributed to us.

    ReplyDelete
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    1. A savings account cannot specify how it is to be divided up. Where was that information given? There are two possibilities. One is in your father's will. The other is that it was a registered account such as an RRSP and the names were put on the account.

      Neither of these really seems to fit what you're saying. It could be that your father's will talked about dividing up an account that was really joint with his wife. That would more or less explain how she got to keep half of it, but it doesn't explain why his will would try to divide up something he didn't actually own.

      I'm afraid I can't give a coherent answer with the facts I have. Can you shed any light on where those instructions came from?

      Lynne

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  73. I'm a beneficiary to an estate. The executor gave me a release form to sign but no where on the release was an amount stated, nor was I given any statement of accounts. I refused to sign and got myself a lawyer. This was three years ago and I'm STILL waiting to receive my inheritance. I found out that the will hadn't even gone through probate, even though my dad had passed away a decade ago. Properties have been sold and I've last heard that we're awaiting a statement of accounts to be passed. I've asked for a portion ($50,000 of the $300,000+ I'll be receiving) and haven't seen a dime. How long does a passing of the statement of accounts usually take?

    Amanda

    ReplyDelete
  74. The situation that I have questions about is as follows:

    An estate is being wound up and the cash assets are being distributed on May 1st. There are 8 beneficiaries who all agree to the cash assets being distributed. There are 2 parcels of land in the estate that are going into all of the beneficiaries names, indicating that each beneficiary owns 1/8 of each of the two parcels of land.

    There has been no releases signed. There has only been a Memorandum of Understanding signed by the beneficiaries (not dated and no witnesses to the signature), agreeing that the estate be wound up and the assets be distributed.

    Questions:
    If the majority of the beneficiaries want to sell the two lots after the estate is wound up and agree to, can they? OR do all beneficiaries have to agree to the sale?
    What happens if one or two of the beneficiaries do not want one of the parcels of land to be sold? Can they simply object? Or do they have to offer to purchase it themselves from all of the other beneficiaries?
    The executor (who is also one of the beneficiaries) is informing everyone that the "majority rules", but I am unsure if that is actually accurate.

    - -

    Thank you in advance for any help you can provide.

    Thank you!!!

    ReplyDelete
    Replies
    1. Putting 8 names on a title is a TERRIBLE idea and you have just showed why. Each of the 8 people can only sell his or her piece of the title (which does not translate into any physical 1/8 of the parcel) so all people must agree if the property is going to be sold to someone who actually expects to use or live in it. If some want to sell and others don't, there is no established routine. You guys will just have to work it out as best you can. It doesn't have to be offered to the other owners.

      No, majority rules is incorrect. Nobody can make you sell your part if you don't want to sell it.

      However, if there's a buyer, you'd be smart to sell it and get the heck out of this ridiculous arrangement before it blows up (which it will, I guarantee it). It only gets harder to deal with as 1/8 owners die and their families take over.

      Why are all the names going on the title rather than selling it and splitting the money? You guys are doing it the hard way.

      Lynne

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  75. **I should have mentioned that this estate is in Ontario

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  76. Thank you so much Lynne. I completely agree that it is confusing and a bad way to go about this.

    Unfortunately it isn't me personally (it's my mother in law's father's estate). I wish I knew why things were not being done in a more simple or clear way.

    Either way, I think my mother in law should insist on receiving a full accounting and should inform the executor (who is also one of the beneficiaries) that she does not want to sell the land. He is telling her that if the majority wants to sell the land (they seem to want to sell one of the two parcels and leave the other one), that they can and she only has the choice to buy them out and purchase it instead of a third party.

    Thank you so much again.

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  77. My question is about interim distributions:

    As a beneficiary of my mother's estate I requested a Statement of Accounts before signing off on the Estate and have noticed that the Executor has written cheques to himself with the memo line "Interim Distribution".

    My question is can an Executor take Interim Distributions for themselves but not give Distributions to the other beneficiaries? And should the amount of the distributions not come out of their share of the estate only - not the Estate Total?

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    Replies
    1. The executor should, as a general rule, treat all beneficiaries the same, including himself. However, you haven't said that he is refusing to give you an interim distribution, only that he took his already. Assuming you find the accounting to be okay, you will also get an interim cheque.

      I don't agree with the executor taking his before yours, simply because it leads to exactly your situation - questions about the actions of the executor. It is a lot smarter for him simply to wait and do all cheques at the same time. However, you also didn't mention whether you have delayed things on your end to the point where he gave up waiting. I don't know if that happened, of course, but it's a possibility.

      At this point, is there an actual difference between the executor's share and the estate total? It's probably all in one estate account. Your cheque will also come out of the same account.

      Lynne

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    2. Thank You so much for getting back to me Lynne.

      I received the Interim Distribution paperwork from the lawyer one week ago.

      The Executor made Interim Distributions to themselves in 2013. No other beneficiaries were offered Interim Distributions and I can tell from the bank statements that no other Interim Distribution cheques were written or cashed.

      Now the remainder of the estate is being divided equally 4 ways without taking into account the Interim Distributions made only to the Executor?

      Thanks again.

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    3. Okay, I understand this a bit better now. No, his interim distributions must be taken into account as advances on his inheritance. I wonder if he meant to say that he was reimbursing expenses? It's a possibility, but it's his responsibility to his accounting properly so you are correct to assume he paid himself part of his share. You are correct that his interim distributions reduce the amount that he should now be getting.

      Lynne

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  78. If a beneficiary of the will accuses the executor (also a beneficiary) of taking items from the house that were not there (having been thrown out or lost before, during a separation), what can be done by the executor?

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    1. Why does the executor have to do anything about it, other than simply carry on with the estate? Has the beneficiary begun a lawsuit or taken other steps, or simply talking?

      Lynne

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  79. It has been two years since our father passed away leaving 95 acres and a house. The property has been for sale and listed with a realtor for nearly as long.

    The sale price is almost twice the government assessed value of $325,000.

    There have been no viewings and no offers to purchase. The house is in need of work. The timber value is about $250,000.

    I am one of 5 beneficiaries. I think the listed sale price is too high and that $500,000 is more reasonable since it includes half the timber value and the assessed value.

    Can one beneficiary apply to have the court order the sale of the property at or near the assessed value?

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    1. Before involving the courts, try to exhaust all avenues that are less expensive, quicker, and more effective.

      First up, discuss the situation with the executor, since he or she is in direct control of the property. You can remind him or her that most executors wind up estates in 18 to 24 months and that he/she needs to get moving.

      Are there other factors not mentioned here? For example, is the executor living on the property or renting it to anyone? I'm wondering if there are reasons that the executor is insisting on an unrealistic selling price.

      If all else fails, you will have to hire a lawyer and approach the court. Yes, you can bring an application to compel the executor to re-list the property, or even to accept a specific offer if one came up. I would hope, though, that prior to commencing litigation, your lawyer would try to get the executor to comply by making a written request.

      Court actions take a long time and cost a lot of money. They also tend to completely ruin any communication between the executor and the beneficiaries. I know that sometimes it's the only way to settle something, but please use it as a last resort.

      Lynne

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  80. My wife is the executrix of her mother's estate as well as primary caregiver and her estranged brother (over 4 decades) is making if very difficult to settle the estate. While at mom's house in the last year of her life my wife's brother copied the will and all mom's financial records, and is only interested in money. He is now asking for her bank records for the last month of mom's life because he is not happy with what remained after her death. Is he entitled to know how mom spent her money prior to her death? Prior to mom's death her son tried to coerce mom into changing her will while we were out of the country along with trying to gain ownership of her house, and when that failed, to give him a large sum of money. This case is very complicated and very caustic. He will refuse to sign off on the estate unless he gets all the information he's demanding. How much info is he entitled to? We reside in Ontario, he is a lawyer (not practicing) working for the Federal Government. We have retained a top law firm, but he continues to make things difficult...8 months and counting.

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    1. Some additional facts would help me give a more comprehensive answer, but I'll do my best.

      Is the brother a residuary beneficiary under the will? If so, he is entitled to a full accounting OF THE ESTATE but not of everything that happened before the mom died.

      Was your wife acting under an enduring power of attorney before mom died? If so, she is required to give a full accounting of her actions to the executor but not to anyone else.

      I realize that in reality, it's easy to say that someone can't have records or can't see something but it's not so easy to carry on an estate that way. Especially among siblings! But sometimes demands for more and more and more information end up bogging down an estate for months or even years.

      In the end, if you find that he simply will not sign off the estate, your recourse is to apply to the court to pass the estate accounts. No doubt your lawyers have mentioned this. If you're able to make the brother happy, then fine, negotiate what he can have, but if it goes forever with no progress being made, consider passing the accounts in court. If the court approves them, there is no need to get the brother's signature. The estate will most likely cover your legal fees for that application.

      Lynne

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  81. Hi Lynn, Thank you for your fantastic blog which is full of useful information! I have a question..... I am the executor of my dad's estate. We are in B.C. It is being split between myself and 2 siblings. One of them,lives in England. That sibling according to the will has to split their share with their child and that money is to be held until the child reaches the age of 25. That's all fine and everyone is happy with that. The problem comes with my sibling in England has found out that receiving their share, which will only be about $20,000 will stop the financial assistance they get now so has asked if there is any way I can keep the money over here and give send partial on an when as and as needed basis. I feel really bad this is creating my brother a difficult financial position but I have no idea what the legal alternatives are regarding this. Should he give his share to his son? Or Ask me to put it into an account over here for him? But what are the reproccussions of that? Hoping you might have an idea that works in this situation....Thank you!Signed, Stumped as to what to do!

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    1. This situation - a gift in a will that results in bumping a beneficiary off government benefits - happens quite often.

      It's too late to apply the best way of avoiding the problem, which would have been for the testator to leave the funds in a discretionary trust for the beneficiary. A discretionary trust does not bump a beneficiary off benefits for one good reason - the beneficiary doesn't own the money.

      By asking you to keep the money and parcel it out to him, he is hoping to create a trust. He is hoping to make it look as if he doesn't really own the money. But he does own it. He has complete control over it. It's not in trust for him, no matter where you keep it or how slowly you dole it out to him.

      Giving the money to his son won't work either, because in order for him to give it to his son, he has to own it first, and owning it - even for 5 minutes - bumps him off his benefits. You can't give it to his son because you're the executor and you have to follow the will.

      Something your sibling can do is waive his inheritance. This means he says in writing that he is not going to accept it, and you as an executor are entitled to accept that waiver. However, your sibling cannot say where the money will go if he refuses to take it. He can't direct you to give it to his son. You would have to act as if your sibling had already passed away and follow the instructions in the will as to where that part of the estate goes.

      Lynne


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  82. Hi Lynne, I received an e-mail from my Aunt who is Executor of my grandfather's will. She is requesting I sign an affidavit that I receive a $10,000 one time payment from my grandfather's estate and that I will take no action against the Estate either legal or monetarily. My grandfather passed away over 10 years ago in 2006 and I have never received a copy of the Will. Am I entitled to see a copy of the Will before signing this? Is 10 years a reasonable period before paying me my inheritance? My cousins received the same letter and have all signed the letter. I'm hesitant to sign. Thanks!

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    1. Generally speaking, 10 years is too long to wait for an inheritance, but there could well be a reason for this. Since you haven't seen the will, you don't know whether the funds were supposed to be paid right away, or whether they were contingent on something else happening. For example, lots of wills hold funds in trust until the youngest child or grandchild reaches a certain age. Since I haven't seen the will either, I can't rule out the possibility of this timeline being appropriate.

      The release you are being asked to sign is standard. All releases ask beneficiaries to sign off completely so that the estate can be finalized and wrapped up.

      I don't know whether you're entitled to see the will since i cannot tell whether you are a residuary beneficiary (i.e. a person getting a share based on what's left) or a specific beneficiary (i.e. a person who is getting $10,000 no matter how much or little is in the estate). If you are a residuary beneficiary, then yes you should be provided with a copy of the will.

      Just as importantly, if you are a residuary beneficiary you should have been given an accounting of what the executor has done with the estate over the last 10 years. If you are not a residuary beneficiary then you are not entitled to such an accounting and should just sign the release.

      If you have questions about your status or the administration of the estate, just call up the executor and ask for some clarification.

      Lynne

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    2. Thank you Lynne.

      I was able to obtain the wording from the Will from my Aunt who is co-Executor: 3.(d) (I) To divide the sum of one hundred thousand ($100,000.00) dollars equally amongst my legitimate grandchildren surviving me.


      So this is where the $10,000 came from ($100,000 divided by 10 grandchildren). It was my Aunt who did not wish to release the money 10 years ago which is why the hold up. Her children (although in their 20's) were unsettled in their lives. Now that they both wish to purchase their first homes, she is releasing the money to the grandchildren. The Trust has earned the interest over the 10 years.

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  83. My father in law died in 2015 jan, we sold his house by oct 2015 and house closed in nov 2015. My husband is the sole executer and we are trying to get his sister to sign off on the passing of accounts, she wont sign, she doesn't want him to get an executer fee. and she says we are taking too long. but she hasnt answered the lawyer to sign, how we are going to court. I am worried if all the accounting is good, we should be ok right Also we cleaned out all the house and garage ourselves, she did not help at all.

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