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.

56 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?

    ReplyDelete
  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

    ReplyDelete
  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.

    ReplyDelete
    Replies
    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.

      Delete
    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

      Delete
  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

    ReplyDelete
  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!

    ReplyDelete
  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?

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

    Lynne

    ReplyDelete
  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!

    ReplyDelete
  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

    ReplyDelete
    Replies
    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!

      Delete
  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?

    ReplyDelete
  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

    ReplyDelete
  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!


    ReplyDelete
  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

    ReplyDelete
  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!

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

    ReplyDelete
  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?

    ReplyDelete
  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!

    ReplyDelete
  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?

    ReplyDelete
  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!



    ReplyDelete
  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
  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

You might also like

Related Posts with Thumbnails