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Wednesday, January 4, 2012

Help! The executor is stealing from the estate!

This post talks about what can happen to an executor who appears to be completely out of control. The question was sent in by a reader (thank you) about his or her particular circumstances but I believe a lot of readers out there will find the story to be a variation on their own situations:

"My grandmother died a year ago and my uncle was named executor in her will. He has not taken responsibility for any of the estate or assets. He was/is using her credit cards, vehicle, and anything else of hers that he left town with. My family does not know which step to take. We cannot confide in the lawyer that was being used due to the fact that he only deals with the executor. There isn't much money to hire another lawyer either. We do not know if there is anything we can do, or if there is even a case. My uncle often dissappears and doesn't return phone calls. For all we know, there could be even more debt accumulated by him. Do you know what could happen to him on the part of fraud?"

This question highlights the difference between criminal law and civil law. Although the vast majority of executors never get tangled up in criminal law, it does sometimes happen. Not as often as it should, in my view! It depends on the facts of the case. If the executor is using a deceased person's credit cards for his own personal gain and has stolen items from the estate, it sounds to me as if there is criminal activity taking place. Fraud and theft are still fraud and theft, though many executors mistakenly seem to think an estate is theirs to keep.

Fraudulent executors are pretty confident that nobody will notice what happens to estate assets, or that nobody would do anything even if they did notice. This is the crux of why so many executors steal from the very estates they are supposed to be protecting.

If you believe that fraud and/or theft have been committed, you don't have to hire a lawyer. You have to call the police. Having said that, it makes more sense if the call is made by a beneficiary of the estate rather than a family member who is not going to inherit from the estate. If the matter goes to court, the estate would be represented by the Crown Prosecutor.

When an executor misbehaves, it is most often dealt with using civil (non-criminal) law. That's because most problems with estates fall short of being outright theft. The problems tend to be things like executors who take too long, who don't look after assets and who won't tell the beneficiaries what's going on.

Proving your case can be difficult when you don't have access to documents or bank account statements. A criminal charge must be proven beyond a reasonable doubt. In a criminal case, the police or the prosecutor should be able to get whatever documents they need whether or not you personally have access to them. In a civil law case, you don't have to prove anything beyond a reasonable doubt; you have to prove your case only on the balance of probabilities (i.e. that it probably happened the way you say it did). If you can't get documents, the court may or may not order that some be given to you by the executor.

Using the civil law, a court can order, among many other things, that an executor must give a full accounting to beneficiaries or must meet certain deadlines. It can remove an executor from an estate, or can set how much of a fee (if any) the executor is going to receive.

On occasion, an executor decides to thumb his or her nose at a civil law court order, thinking that the worse that can happen is a loss of executor's fee. That's pretty foolish, as contempt of court may carry a jail sentence.

While you are certainly allowed to go to court without a lawyer for a civil law matter, it's very hard to do and you would be much better off if you had one.

77 comments:

  1. Good article and a reminder that not all executors behave in an appropriate manner, thus it is essential that beneficiaries protect their rights a.s.a.p. The Estate solicitor also should have a duty to ensure that the executor is acting in good faith and according to the wishes of the deceased as well as provide the beneficiaries with detailed info., if not, than take them to the law society as they become part of the problem instead of resolving and using their expertise to ensure compliance and distribution of assets.

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    1. How exactly does an estate solicitor ensure that the executor is acting in good faith? In fact, he can't. A lawyer can advise 'till he's blue in the face but if an executor is determined to behave illegally there isn't a damn thing the lawyer can do about it.

      Lynne

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    2. There isn't a damn thing anyone can do about it because the police call it a civil issue and the lawyers are VERY expensive. Basically with my experience Excutors can do what ever they want with absolutely NO reprecussions in Canada. It is rampant.

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    3. The Estate Attorney who handled my parents' estate was negligent and a moron. he believed whatever the lying executor told him and now a LOT of money is missing from the estate! Why can't lawyers be barred when they act as the executor's henchmen instead of protecting the estate and ALL the beneficiaries??
      We need to have more judges and politicians end up at the short end of the stick and only then will we see some changes made!

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    4. Lynne, isn't transparency key here? If significant money is missing, it doesn't pass the smell test! The law as it stands gives the fox the keys to the henhouse and all that's going to be left for the other beneficiaries is a bit of chicken feed!

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    5. I'd like to respond to the question of why lawyers can't be disbarred when they act as the executor's henchmen. I too would like to see dishonest lawyers disbarred, and dishonest people everyone get run over by the karma bus.

      Try to remember though that there is next to nothing a lawyer can do with a lying or manipulative client. I once had a client who was being forced (in my opinion) to make a will she didn't want to make by a relative. I refused to prepare the will. A week or so later, the manipulative relative called me up and smugly told me they'd found another lawyer to make the will. There wasn't anything I could do. And if the next lawyer refused as well, they would have kept calling lawyers until they found one who was desperate to pay the bills or didn't have many scruples.

      There's nobody we can call to "tell on" the executors. We are bound by confidentiality not to discuss our cases with anyone, even our spouses. The public wants us to "do something" but... what? I wish I knew.

      Having said that, I know some lawyers lack morals. So do some doctors and some firefighters and some mechanics and some bakers. People are people.

      I also agree that transparency is the key. Beneficiaries have to police the estate and where money is missing, they have to enforce their rights by using the courts. That's how our legal system is set up, and you can't fault any individual lawyer for the whole system.

      Lynne

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    6. I'm posting a reply to wherever I can see I can post as I tried to put in my comments it won't let me. First to defend yourself look up procedures and laws of your state. Then you ask the Notary or attorney to comply. If they don't you look up the division that licenses them. Then you let them know that if they don't comply you have no choice but to put in a complaint. Worked for me. They are now co-operating. Also in the end they have to register the final rendering of account with the state or province with heirs acceptance, otherwise the state will take over the matter. Working for me hope this helps anyone

      Thanks
      Johnny

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    7. Thanks for your comment, Johnny. What exactly are you asking the notary or lawyer to comply with? You can't force a notary or lawyer to work for you, so I wonder whether you are talking about one who is acting as executor? Your comment is obviously American, but we have the Canadian equivalent of the body that licenses them. We don't have the equivalent of registering of their accounts ,and by this I'm not sure if you mean their bill for legal work, or the accounts on the estate, but in either case there is no place to register. We do have the option of getting the heirs to sign a release that approves of the executor's accounts (not the lawyer or notary unless they are the executor) but failure to obtain the signatures does not automatically result in anyone taking over. Obviously your system for estates has several differences from ours. I'm glad, though, that you have figured out how to get the estate moving.

      Lynne

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    8. Since my last post, the estate attorney hired LAWPRO once my affidavit landed on his desk proving that the executor had him totally snowed. Now I get to take TWO individuals to court. What are the chances that the LSUC are going to give this 'lawyer' more than a slap on the wrist? THIS is what I meant about lawyers protecting each other. And since when is the beneficiary supposed to chase after the executor and when are the courts going to make it crystal clear to executors that if you steal from the estate, you are going to jail?

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    9. I must say I understand the issues people have had with executors and even lawyers. However, being an executor that worked for 2 yrs on an estate and went above and beyond and no wrongful practices I still had litigation by beneficiaries that was vexatious. It cost the estate a large sum of money. I would like to see more checks and balances in the system to stop these kind of actions of beneficiaries. It truly was a miscarriage of justice.

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  2. Hello Lynne

    Having found the need to be searching keywords such as executor, fraud, liability and the like I must say I have found your blog extremely helpful. Thank you. I have one small suggestion to those drafting their wills that you might like to consider. That is attaching to the document, the clearly stated duties the executor has in fulfilling their role as executor. It may sound simple, but the executor is sure to be rereading the will throughout the process. If each time they read the will they are reminded they are there to act on the behalf of the beneficiaries and not themselves, less fraud might occur.

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    1. Thanks for this suggestion. I'm always interested in hearing ideas for cutting down on abuse by executors and powers of attorney. You're right, it's simple, but that's not a bad thing. I often see executors carrying on as if they've been handed the keys to the vault for their own personal use. Perhaps, as you say, some reminders of their legal duties would be effective in curbing that.

      Lynne

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    2. hello there im stummped my sister is the executor of the estate,as well as a bennificary and probate was done in Oct. I have thu lawyers sent many letters asking for disclosure on what she has done.
      Ive also asked her lawyer to get the understudy to hold the proceeds from the estate untill this gets in front of a judge.
      They will not respond and i have proof of my sister using credit cards of the estate.sold all assets and forged the signiture on my mothers vehicle when my mother wS dying.
      i need to know what and what steps i can take to ensure the proceeds of the estate are safe untill this goes to court.
      she has also threatened to move to the U.S.A
      please any info would help greatly

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    3. I found this note very confusing but I'll do my best. You mentioned twice that the estate is going to court but you don't say why. I also have no idea who or what is meant by "the understudy".

      If the probate was only granted in October - 4 months ago - the executor hasn't had a lot of time to do much of anything. You do realize that estates generally take a year to finish, right?

      You mentioned that the executor has sold the assets, but that is exactly what she is supposed to do.

      You also mentioned using the estate credit cards and forging a signature. Obviously those are criminal acts, but generally estate matters are dealt with in the civil courts. Perhaps that's why you've got a court date set?

      Since you are already working with a lawyer, I assume that you've covered this topic with him or her. You might look at requesting security for costs, or requesting that funds be paid into court until the trial date.

      If your court application does not include a request for passing of accounts, perhaps it should.

      Lynne

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  3. I am going through this same thing now. I do have a lawyer involved but it is a long drawn out process. The administrator is in charge of an intestate estate which legally should have been all settled within 6 months but this has been going on for over 2 years now. There is concrete proof of money missing from the estate because he was trying to leave out that amount in the total assets along with several belongings.

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    1. I disagree that leaving an amount out of an accounting is concrete proof that money is missing. I also disagree that missing money means a crooked executor. I assume that with the concrete proof, you were able to determine that the loss was due to the executor's actions and not to a falling market or other outside influences. If so, you would demand that the executor fix the situation using his own money. If that doesn't happen, you can deal with the executor through the courts. Depending on the situation, you might call the police. But be sure of your facts before you take either of those steps.

      Lynne

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    2. Yes, you can pursue this issue through the courts if you happen to have at least an extra $15k hanging around that isn't ear-marked for, say your childrens' university educations! The law needs to have more serious teeth and more serious consequences for estate trustees who use the estate as their personal piggy bank.

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    3. I agree that there needs to be more repercussions for executors who intentionally misuse estate funds. I also think that those repercussions are beginning to happen more often than they used to. I've seen quite a few cases in which judges have cracked down on rogue executors. Also, it used to be that executors had their legal costs covered by the estate no matter what, but those days are gone. Things are slowly changing.

      Lynne

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    4. Things may be changing, but at a snails' pace! Here I am $20k into the process and all I have to show for it is $600k+ still missing from the estate, and a statement from the Judge saying that a) I have a case (like I needed him to tell me that) and b) it needs to be settled or we go to court. Taking crooked executor to court will cost me at least $75k - is Justice, deaf, dumb or just plaid stupid??

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    5. I don't know whether deaf, dumb, or stupid apply, but I do know that the legal process doesn't go well with estates. Our system is built to be adversarial - only one side is going to win and we have to do everything we can to discredit and destroy the other party. I wish more estate disputes would go to mediation rather than court, as it's so much faster and cheaper. Not to mention less stressful. Hang in there.

      Lynne

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  4. My executor (she is one of beneficiaries too) withdrew her executor fee from an estate account even though I haven't signed off yet. Can it be a criminal charge?

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    1. It sounds as if you want it to be a criminal charge, which makes this estate much like any other - by the end of it, everyone hates the executor. And the part you left out, of course, is how long she waited for you to sign off before she got fed up and just took it.

      If the executor has taken more than you and the other beneficiaries are prepared to allow, she should be asked to repay the overage. If she won't do that, you will need to ask a judge - in a civil court, not a criminal court - to order her to repay it

      Lynne

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  5. Our executor keeps giving us distribution dates and then changes with unforeseen issues. He plays the blame game as to why there is no partial distribution. There was to be a partial distribution made April 20th as per the lawyer for the estate but the executor came up with another excuse. This has been going on since probate September 2012. We feel that the money could be spent by the executor. What are our options. We have a lawyer but the executor ignores her emails. This is just terrible.

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    1. It can be pretty frustrating waiting for an estate to move along. Please keep in mind that the executor is not obligated to make an interim distribution; he is well within his rights not to make one at all but to wait until the final clearance certificate has been received from CRA.

      Having said that, it appears that you really do have a communication issue with this executor. Part of the problem seems to be that your lawyer is contacting the executor directly when the executor has a lawyer. I have always told my clients not to respond to anything sent directly to them when I'm representing them. Now if the problem is that the executor's lawyer is ignoring your lawyer, that's another matter. Depending on the circumstances, your lawyer may have to resort to contacting the law society to get a response.

      Do you have any reason to suspect that the money has been spent, other than these delays? I'm not saying it couldn't be spent, because Lord knows there are plenty of greedy executors out there, but I don't want you to jump to conclusions.

      Lynne

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  6. My uncle took my mother to a notary when she was diagnosed mentally incompetent and changed the executor-ship from me to himself he was also the Power of Attorney. My mother has passed away my brother & me are the beneficiaries. He will not show us any bank statements or other assets.How can I get a court order to make him produce these records? B.A.K.

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  7. my mom died 6 months ago, my brother is the executor as well as a beneficiary and my other brother and I are beneficiaries. A month before my mom died she told me she had X amount of money that just got unlocked out of her GIC account. But when he died my brother the executor said he had almost $100,000 less then what my mom had told me (He doesn't know my mom told me). I didn't say very much because it was going through probate and since the executor wasn't being very informative, and kept changing figures i thought i would just wait and see how much money we would get. Now 6 months later I got my cheque, which is significantly less then expected, but since it was still a good amount of money, and I had no proof that the executor was stealing I would just leave it alone, but i just found out, through an uncle that my other brother (The other beneficiary.....we haven't spoken in 10 years) had gotten less then half of what I got, when the will was supposed to be split evenly 3 ways.....so that is proof that she at least stole the difference, but likely a lot more. So what should I do? also i think it's weird that it's an exact amount not X amount with 52 dollars and 33 cents are something. Also, I didn't sign anything stating that I approve the money or anything, we just got a cheque. HELP!

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    1. Unless the executor was stupid enough to be put under pressure by the beneficiaries when they were grieving the loss of the parent.
      Also, that they did not realize and did not take into account their foreign assets.
      There was probably good reason why the mother left him in charge.
      Also, if the person could have done it differently they would have had the lawyer finish up the estate.

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    2. I was put in charge by my father, because there was no one else to do it. My husband and I had a very happy and successful life before I got involved with this mess and these vultures. Executors beware!!!
      If you get asked to be an executor say no, if you have such vile sisters and brother like myself. My parents were very ill and no one except for me went to even see them. It was alot of work and I spent alot of my own personal time and money. My brother who posted these comments is a gambler and my father called him a worthless bum.He received one third of the estate as if there were no expenses but because he spent it all and asked me for even more money,which I gave him.
      Anyway, I've been through hell with these despicable people.
      So the only advice I can give is executors beware of good for nothing siblings!!!

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    3. Would like to see reply to Aug. 3rd, 2013 1:18 pm query. Thanks

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  8. Seems like nothing can be done unless the beneficiaries have the money and time to pay for lawyers . The executor refuses to answer anything and if needed with estate money can hire a lawyer. Then its like poker. He who still has money to pay for lawyers wins. Finally after a number of years then an executor can keep the money and there is nothing anyone can do unless the beneficiaries are willing to keep paying for lawyers out of their own account. When they run out of money or willingness to spend more, then the beneficiaries are done and the executor can do what he wants and keep the money. The law means nothing. There is no way to have the police investigate the documents and then take on he case and press charges.

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  9. Its apparent unless the beneficiaries have enough money to keep paying lawyers to pursue the executor that the executor can do what he wants and take the money and refuse to pay out.

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    1. In regards to a beneficiary always needing a lawyer to pursue after executor, not true. You can self represent yourself before a judge. If the judge is lenient he will let that person get by with what they are asking of the executor. Just like executors exist that are not always honest and upright. I have yet to see much written about beneficiaries that have ruined an estate by their malicious ways. I know of a case where the beneficiary would not let the accounts pass and legal fees ate away at the inheritance. There was no basis for the conflict they caused just vexatious motivation. Where are the checks and balances in our system for that. They don't exist.

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  10. Its highly unlikely you will post this comment- cause its true. There is no alternative, if a beneficiary does not have the money to keep paying a lawyer to pursue an executor or get him into court and force him to provide proper accounting or payout proceeds. He can even through his lawyer threaten to sue the beneficiaries for costs, grief and mental duress if they take action. If the executor deems to steal the money and not pay out to the beneficiaries or provide an accounting, he can just go ahead and do it. If a beneficiary hires a lawyer they can only retain a lawyer until their personal money runs out. Meanwhile the executor can use the estate money to pay a lawyer to defend the executor. And as long as the executor refuses to give any source documentation to the beneficiaries then they can not find a way to circumvent to proceed with a criminal investigation. Accordingly any dishonest executor can steal the money so long as the he has more money than the beneficiaries for lawyers and can outlast them.

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    1. There is no reason that I would avoid posting a comment like this. It's not like I'm personally responsible for the existence of the situation. I can see this is a subject that is really important to you, since you made three posts about it in one day.

      The point you make about it being easier to win a legal battle if you have more money and time than the other side is, unfortunately, more true than it should be. It's not just for estate matters either. The truth is, it costs money to enforce your rights, whether it's an inheritance or a car accident or an unfair work dismissal. Our legal system sets us up as adversaries.

      The other problem is that to some extent, executors (and POAs) operate on an honour system. That's only going to work when people are honourable; unfortunately an awful lot of people couldn't give a damn about anyone but themselves.

      I can see that you are having one hell of a bad time with an estate. If only more people would use their brains when they choose an executor. If only more parents would open their eyes about how their kids really are.

      The only thing that would bring a halt to the situation you're talking about is for the beneficiaries to ask the court not to cover the executor's legal fees from the estate, or to ask the court to pay the beneficiaries' legal fees from the estate. This isn't always applicable, of course, but it is supposed to apply when an executor is not doing his job. If you've demanded an accounting several times and the executor is not producing one, why the heck should his legal fees be paid from the estate? The days when all legal fees are automatically covered are gone, and the courts are supposed to award fees based on subject matter, and of course, on who wins.

      Lynne

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    2. I was left as the executor of my parents estate, because I was the only responsible one in the family.
      My one sister tried to steal the
      entire estate and did not take care
      of my very sick parents. The awful
      person who posted these comments is my gambling brother, who was constantly asking money from my father, who was in a nursing home. My other sister, who is a fat pig, who said horrible things about ny parents and now is causing problems as well. Neither of these worthless people did nothing for my dying parents. They
      did not even go to their funerals.
      The stealing of money that they ar
      e discussing is my parents
      expenses and my executors fee,

      that I'm legally entitled to!! I'm

      also, going to be suing them both
      for punitive damages. My brother who posted these comments lives on the streets. I'm so ashamed to be part of such a horrible family.
      I was forced for years to take care of my parents without any help from these horrible strangers, that are my siblings. I wish I was never part of this family. We are currently going into meditation,with my sister's dirt bag lawyer and it's almost done.I wish only bad things for them, and I'll be happy never to see or hear from them again. I hate then for the way they treated my parents and now me.

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    3. I wish I never knew these awful people. I'm sure my parents felt the same. It's awful when you hear only one side of the story, that's completely not true. I'm sure my parents knew why they put me as their executrix, because I was the only one supporting them, with my own money. I hate my family, and if it wasn't for a sense of duty to my parents I would not have gotten involved. I've gone through hell.


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    4. This just goes to show that there are always two sides to every story. My heart goes out to you for the pain this estate is causing to you. I wish I could say that your family's struggle is unusual, but a lot of people go through this very thing.

      Lynne

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  11. My Dad left his estate to my sister and I 50/50. He made a big mistake by appointing her as executor. All the advice out there about selecting the right executor is very true, choose wisely. She has admitted to being a gambling addict in front of my and her lawyer. She has sold/spent/lent and gambled all estate assets including a second mortgage against the estate property. She has since taken a third mortgage because money is needed to further clean up the property,and oh ya, she bought herself a new car. During her spending spree she has also been collecting welfare from our kind government. She has abused her role as executor on so many levels. We, my lawyer and I, have demanded an accounting several times with no success, so we have now filed a claim to have her removed as executor. I am now considering criminal charges. All through this I am wondering if I'm doing the right thing, any and all insight will be appreciated.

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    1. We're in the same boat. It's horrible

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  12. Lynette ChristoffMarch 21, 2014 at 8:49 AM

    Hi Lynne,

    Great blog! I will try to keep this short. My Grandmother passed away almost 3 years ago. There was a Will, naming my Uncle 2/3 and myself 1/3 beneficiaries of her estate. Unfortunately she named my Uncle as executor. One year after her passing, nothing had been done, I retained a litigation lawyer and a probate lawyer. Upon obtaining bank statements, we discovered the following:

    *my uncle had used power of attorney AFTER she died, was in the bank the day after she died, started transferring money.

    *He wrote cheques to his 2 sons and to another family member, and also a cheque to himself totalling $35, 000.

    * He withdrew $500 each day for a month.

    * As at my Gramas date of death there was $65, 000 in her account, one month later the balance was zero.

    *He is still living in the estate condo and has been driving/wrecked my Gramas car.

    *He has been dishonest and shady since day one. He rarely responds to inquiries and lies when he does.

    The matter went to Civil Supreme Court as I applied for Letters of Administration

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    1. Who was the other family member that a cheque was written to Lynette?

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    2. Lynette ChristoffMarch 29, 2014 at 6:58 PM

      Hi he wrote 2 cheques...one to each of his sons; also wrote one to a cousin of ours; he wrote one to himself and one to me. I am the only beneficiary other than him.

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    3. Funny how you omitted the fact that you received a cheque yourself and tried to minimize by stating that you received a cheque as well but stated it last after the others that were written cheques. So you have received some money after your grandmother passed away and before probate was granted too?

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  13. Lynette ChristoffMarch 21, 2014 at 9:02 AM

    Further to my previous...it published before I was done...

    So I applied for Letters of Administration last Fall. My uncle didn't attend but his lawyer was there. My lawyer, a hotshot inexperienced lawyer, failed to address the proof that my uncle was handling the estate properly; therefore we lost. There was however a court order made that my uncle was to immediately list the condo for sale, provide an up to date accounting and to list the condo with an independant realtor....oh I forgot to mention my uncle is also a realtor and has tried listing the property with himself as the agent...illegal.

    Probate was granted 3 months ago...my uncle has now hired a co-agent with himself as primary agent; he has not provided the accounting; he is still stalling.

    Do I have grounds to file criminal charges? We have all the bank info showing theft and fraud. He also purchased a houseboat with estate funds.

    Thank you for your time.
    I fired my lawyer and have been representing myself as to present day.

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  14. Hi Lynne,

    I wrote the above reply on March 16. I am also interested about your thoughts on criminal charges against the executor, who in my case, has gambled, lent, spent all estate money without my knowledge.

    First off, I will be extremely surprised if the civil courts here in BC don't see the need to remove the executor.

    Secondly, I will file criminal charges against the executor.

    I have spent hours reading through your blog. Your comments to real life Canadian estate situations are truly helpful. I know you are very busy with your life and career but any insight would be appreciated.

    Thank you for all your efforts.

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  15. Lynette ChristoffApril 20, 2014 at 7:54 PM

    To the 'Anonymous' writer who commented on my post. First off, you have no idea what you're talking about, so mind your own business. Second, yes I did receive a small cheque initially; I mentioned it last as the question posted was " who ELSE received cheques". Proper grammer would be to mention myself last. Furthermore, the Executor used Power of Attorney after my Grama died; therefore he was able to move funds around before probate was granted. Anything else you'd like to add...genius?

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    1. Okay miss grammar queen,

      Below, this paragraph I have quoted what you said first in regards to him writing a cheque to "another family member" and then, I quoted what I asked, which was, who the other family member was that a cheque was written to....nowhere did I say "who ELSE received cheques".

      "*He wrote cheques to his 2 sons and to another family member, and also a cheque to himself totalling $35, 000."

      "Who was the other family member that a cheque was written to Lynette?"

      Actually I meant to say that in your first post you didn't say anything about yourself receiving a cheque, you didn't own up to actually receiving a cheque until you were questioned about it...you said his two sons and himself received a cheque but didn't name the other person.

      By the way, proper grammar (you really should watch your spelling if you are so concerned about grammar) for writing numbers in a sentence is to spell it out if it is a small number such as two, not 2, but two. Sorry I just had to correct you. Hope the rest of my post meets your approval. :)

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    2. lynette christoffMay 28, 2014 at 9:21 AM

      Dear 'anonymous'...why do you feel the need for name calling and accusations? I am merely seeking advice from Lynne Butler...not you.I am not hiding the fact that I initially received a small sum as well; I am a beneficiary and as such was entitled to it. My point was that money was allocated to other people who are not beneficiaries....why are you having such difficulty getting that through your head?? You don't know me nor did I ask for your opinion. Please stop commenting on my post, you are not welcome in my discussion and you are not an expert in these matters. Find someone else to bully!

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    3. lynette christoffMay 28, 2014 at 9:34 AM

      Dear 'anonymous'....why do you feel the need to bully and name-call? I am merely seeking advice from Lynn Butler...not you. Perhaps you need more to do with your time? Why do you feel that your comments are even welcome on my post? Are you an expert?

      The other family member was a cousin, as I already stated. I am not hiding the fact I did receive a small sum initially, I am a beneficiary. My point, which you obviously missed, is that non-beneficiaries received sums of money as well. Noone should have received anything, including myself, until probate was granted.

      Anyway probate was finally granted and we are on our way to finalization of the estate...3 years later. There is nothing that can be done about the misallocation of funds, nor misrepresentation of the estate. Unfortunately the executor is getting away with it all....fine justice system we have.

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  16. The executor of my Dad's estate stole everything my brother and sister didn't steal after I paid to carry the entire estate. The police wouldn't help me, the lawyers here were not available, the lawyers in the major city in my province were extremely expensive and then executor finally must have either forged my signature or finalized the estate without it because I never signed on anything. If you want what you have to go where you want it to go; give it to them before you die - period. That way no one can steal your families birthright. I am digusted with the legal system in Canada in respect to wills and estates - it is completely ungoverned unless you have tens of thousands of dollars to pay lawyers and years of your life to make it right. People change when money is involved. Also,in my opinion any will that is suddently changed when someone is in their last months or weeks of life should be null and void - there has been two situations in my family now where certain individuals had elders who were at end of life stages change their will in their last months to favour the person instigating the change and exclude others - this shuld be illegal and there should be a point in a person's health care where a doctor determines on a standard form that changes to legal documents are no longer valid or legally binding. This should be part of health care - not something that they are asked to do after the individual dies, years later when things finally get to court to question validity of wills and they don't even remember the patient much less their mental state on a certain date in the past.

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    1. I feel your pain, I really do. You raise some really good points in your comment.

      Your statement that people change when money is involved is bang-on. Absolutely true. And when you add that fact to the greedy person having access to the money while nobody else can gain a clear idea of what's there, there is going to be trouble.

      Your advice about parents giving their kids their inheritance while they are alive can be a really good idea. I think it would happen a lot more if only parents knew how much they were going to need for themselves. Not knowing how many years we'll live, we can't predict that.

      It would also happen more often if parents would drop the ridiculous "it won't happen in our family" belief. Of course it will happen in their family. It happens in almost every family

      It's true that in Canada we must pay if we want to enforce our rights, but that's true outside of wills and estates. You also have to pay big-time if you want to sue someone for property damage or wrongful dismissal or breach of contract.

      Our laws are changing and progressing, though admittedly at a snail's pace. Most wills law is over 100 years old, made for a time when people were much more accountable to society and to family. Nowadays people don't seem hesitant at all to rip off their own siblings.

      Your point about a death-bed type of will being illegal is interesting. There wouldn't be much good in making it illegal to make a death-bed will, since a person in that condition probably doesn't really care about paying a fine for doing something illegal. Currently, and for some time now, our law says that a will made under suspicious circumstances - which includes last minute changes that favour one person - are treated differently than regular wills. Once the information about the suspicious circumstances are pointed out by someone like you, the law shifts the burden of proving the will is valid to the executor of the new will.

      I hope other readers see your comment and take it to heart. Parents who read this should re-think their executor appointments. Beneficiaries should understand that they need to become as informed as possible.

      Stories like yours are the reason I believe in karma.

      Hang in there,
      Lynne

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  17. Lynne here is my situation as one of 3 natural born children my Dad passed away in October of 2013. At that time we learned there was no will, from my Dads lawyer. I hired a lawyer to make sure that this was the case, and it was my Dad died intestate. There was no probate as my Dads lawyer said it was not needed...however yesterday Ivlearned that this same lawyer did the paperwork for a mortgage 18 days after my Dads death for the sum of $265,000 to my mother who says there was a will made in 1995 the year my Dad had a quadruple bypass. My mother has refused to produce any will to anyone. I question whether this will is legal, whether or not 18 days is legal to do anything with property which by the way my Dads name is still on. I do not have contact with her as she has made it known to my layer that she classifys me as her ex daughter...please help what should I do. Should be noted there was no coroner either and my Dad died at home while " apparently she was in the kitchen and heard a horrible thud". This woman has claimed to be blind no doctor ever declared that, now claims to have Cancer and dying again for the third time in five years. This woman claimed my Dad had a POA but in fact did not. I was told by my Dad I was to get his necklace and according to statement from sister and mother she wears it since she removed it along with other jewelry he had on his body...did that in front of OPP officer

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    1. My Sister is an executer also, we found out that she cashed in my Mothers rrsps about 10 years ago, She told us 5 Children that are beneficiarys that there is no Life Insurances, yet Our Mother worked for Canada Post,and was retired with a good Pension every Month, Our Sister/Executer told us Our Mother had no coverage for her long term care, our Mother had Alzeimers,Our Mother Loved us all equally, and in her will everything was to be devided equally amoungst her 6 Children, not left to 1.Now we find out She had another bank account and Her Husband, our Brother-in-law let it slip that they cashed my moms rrsps in from that Bank years ago.I don't care about Money , but I do care about my Mothers dieing wishes, that everything be devided equally among her 6 Children . Not 1 Child, We are so hurt over this.

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  18. I appreciate your blog and the information contained in it.

    My dad died 5 years ago and his executors will not fully disclose everything that is going on. They won't provide a proper easily followed accounting. We suspect they are embezzling but have no way of knowing for sure, and certainly no way to prove it.

    They keep refusing to finalize the estate and give the beneficiaries anything. Not a dime. The estate is valued in the millions. We have had lawyers involved but it has gotten us nowhere. The lawyers keep dragging this out, and the executors keep inventing new excuses for not doing anything. They hadn't even applied for a tax clearance certificate until recently.

    One of the executors is an accountant and will know how to make money disappear on paper - but since we really don't know what was there to begin with....it's all the more easy for millions to slip into his pocket unnoticed.

    The beneficiaries suspect the executors may be planning to leave the country with the money. What recourse would we have if that actually happened? And is there any way to get them investigated without any proof?

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    1. You need to get yourselves an attorney who will force the executors to provide a statement of accounts. Also I'd rat them out to the province and the federal government - probate is NOT a courtesy, estate taxes are taxes. Court orders can be served requiring all bank and financial records be handed over - trust me, the investment houses do not want to get charged with fraud. Your father's last tax records will contain all the investment schedules so at least you will have a place to start. By all means DO NOT waive your right to probate or sign any waiver if/when they finally present an offer.

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  19. What can be done about an Estate Attorney who is acting as the Executor's pitbull, when the Executor is stealing from the estate? Why do you lawyers always protect each other? This jerk wants me to sign a waiver, when there is $700,000 missing from the estate! Does he think I am stupid?? We are going to see more widespread elder abuse and executor fraud unless we demand that the laws have real teeth and real consequences for crooked Executors and their attorneys. People pay good money to have their wills drawn up and those contracts HAVE to be fulfilled as directed. Why is this such a problem?

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    Replies
    1. If the executor is stealing from the estate, why are you focused on his lawyer? Focus on the person who is stealing! Lawyers do not always protect each other, believe me, but you have to realize that the estate lawyer doesn't work for you. He works for the executor, not the beneficiaries.

      You haven't actually said which lawyer is protecting another lawyer, but I assume there's one involved somewhere.

      If you don't want to sign the Release - and I certainly can see why you wouldn't - the hire a lawyer of your own and force the executor to pass his accounts in front of a judge. Perhaps he doesn't think you're stupid, but only that you won't bother taking him to court over it.

      I agree 100% that the will has to be followed. Since apparently it is not, it's up to you to force it.

      Why is it such a problem for executors to follow the will? Well, there's greed. Power trips. And laziness. And of course, unintentional incompetence. And let's not forget that sometimes the executor is doing what he's supposed to and the beneficiaries don't get it.

      Take it to court. Force the executor to do what he's supposed to do.

      Lynne

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    2. I am thinking better to just hire a thug to take revenge on the thieving executors, a pound of flesh and all that. WE ARE LEFT WITH NO CHOICE. Executors are well aware they can get away with it. Put some heads on posts and such; the rest will think twice?

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    3. Personally, I wouldn't advocate putting heads on posts, or other medieval methods of punishment, but I understand where you're coming from. Estate issues burn a really deep hole because they're not just about money. They are about being controlled, ripped off or manipulated by someone you're supposed to trust.

      Lynne

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  20. In our case, the estate lawyer repeatedly told the beneficiaries that he represents us all equally and without bias. We found out, subsequently that this is clearly not the case. There are a ton of grey areas in this legalized financial process and lots of wiggle room for those less than scrupulous 'Trustees'.

    My advice is to examine all financial data with a fined tooth comb from the date of death onwards. Also look into POA and potential jointed account issues if/where applicable. Leave no stone unturned and don't take no for an answer from the estate lawyer, court system, and/or executors.

    Curiously, there are no ombudsmen in this discipline( we presented our concerns/ objections to the probate registrar in the 'estate closing' but the court sided with the trustees on all matters and so we had to retain a lawyer in the eleventh hour where upon they all saw the light (court/trustees) and changed their mindset immediately) ... so you are on your own and thus a lawyer is highly recommended.

    Must be extremely intimidating for the less than educated beneficiaries. I have two degrees and have still found the pitfalls/stonewalls discouraging & difficult to manipulate, at times.

    It can be done though. Go for it!

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    1. I agree that this can be a real minefield of an area to work in. There are so many different laws and rules and rights and obligations for so many parties. To me, the greatest weakness in the system is the lack of control of executors. The system relies too heavily on people being honourable, even though people prove themselves to be the opposite pretty much every day.

      I don't mean that all executors are careless or deceitful. I know that isn't true. But there are enough of the dishonest ones that it's a problem.

      One of the best pieces of advice I ever give is that people involved in estates should look for a lawyer with estate experience. Yes, it makes a difference. Estate law is a specialty.

      I love the ombudsman idea. I'd love to have that job.

      Lynne

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  21. My aunty died in a foreign country in early 2015. I am a beneficiary. Anyway, It is now September, and I have asked my brother who is the executor for an accounting (he has refused to even let me know such things as how much the coffin was, or what was in the foreign bank account the day my aunty died - he says the bank is not responding to his requests for the statements).
    Is it legal within Canada that the executor can refuse to let beneficiaries know what their expenses are, and also refuse to show bank account statements unless the beneficiaries sign release of funds documents? My brother is saying that he is not obligated to show any accounting until he is ready to disperse money. Is he lying?

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    1. Hi. I answered this question in a new blog post on October 3, 2015. Here is the link: http://estatelawcanada.blogspot.ca/2015/10/does-executor-have-to-agree-to.html

      Lynne

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  22. We live in BC. A relative passed away Dec 2012, leaving his estate to 9 members of the same generation, including my then 2-year-old grandson. The relative wasn't wealthy but a trust fund of perhaps could eventually help pay for our grandson's post-secondary education. Unfortunately the executor is an unreliable family member. My daughter was busy with college for 2 years so did not want to pressure the executor. My sister-in-law has been in occasional contact with the executor and, when she would ask, the executor would get upset and say things were being settled - but this appears to be untrue. While there was a lawyer initially involved, the law office has explained that the executor stopped contacting them. The executor had said the lawyer "fired" her. When my daughter called the executor to inquire, the executor became very angry and refused to speak to her. We do not have contact information for the other beneficiaries, but when my daughter spoke to the law office today they said they have been contacted by other beneficiaries looking for information, as the executor refuses to tell them anything. My daughter spoke with the Public Trustee's office last week (this was advised by a Notary Public). She plans on contacting the PT office this week to update them re: the information from the law office. As my grandson is a minor, is involving the PT the best route? My daughter is a single mom and has earned herself a decent job but cannot afford a lawyer. She is planning to seek out any free legal advice she can get. She and I are drafting a registered letter to the executor requesting an accounting of the estate and for the location and amount of my grandson's trust fund. (We do not expect a response.) My daughter is also attempting to get contact information for other beneficiaries. We suspect that a lot of money has been spent by the executor as she has been on disability or welfare most of her life and has been living larger than her income for the past couple of years (several cruises, new vehicle, etc). If legal action is required, if several beneficiaries pool resources, it might be worth pursuing although all of the money may not be recoverable. My husband and I can help a little with legal fees but without knowing the value of the estate nor what funds remain, it may not be worth the money and stress to pursue say $15-20,000. We are also checking to see if probate was completed. Do you have any other advice for us? It would be greatly appreciated.

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  23. Great website and post.
    I wanted to ask for some legal opinion on a situation which has now become very old. This deals with the distribution of an estate from 2000
    My mother passed away and my younger brother was named as the Executor in my moms will. Her will was extremely specific that all of each of her 3 children recieved certain items. The balance of the estate (residue) was to be divided equally among her three children. Here is where it gets interesting.
    I was advised that my mother left her RIF of 65K to her 3 grandchildren - 2 of one sibling and one of the other. In my moms will it states that no one shall have benifiet from her death until the age of 18. It was explained to me by the executor that the money would be held for the children until they reached that age.
    Now - the children are 21 and many things have come to light.
    NONE of the children have recieved any money from this RIF. Only the executor has recieved the funds. It is now believable that the money was never left to the children and was pocketed by the executor.
    The executor decided he would by the house from the estate in the amount of 302,000 .... and in doing so split that amount of money between the 3 benificieries. It has come to light after some digging that the house had a value of almost 400,000 in the year 2000. One of the benificieries remained in the house for a period of one year. No rent was paid and the estate paid the utilities and taxes on the property. The two benificieries (both brothers) developed the house and sold it for 850,000 after paying me out the share of 1/3 of the 302,000 minus moms expenses.
    I just found out the house was never transfered to either one of thier names and was sold from under my mothers name. The will was never probated...and there was never an accounting provided. How can I go after the both of them after so many years even if I just found all of this information out. I feel that I have been ripped off by my own brothers for over 60 thousand dollars.
    Some advice would be greatly appreciated.

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    1. Wow, that's quite a story. I can make a few general comments here that I hope you'll find useful, but if someone came into my office with this scenario, I know it would take an hour or more to explore it.

      Are you sure the will was never probated? If it was not, how could anyone legally sell a house that was in her name? You need to do some searches to verify your information. You should search the probate court nearest where your mother lived to see if an application for probate was filed, and if so, get copies of everything. Then you need to go to the land titles registry and do a title search on the property that was sold. Get a historical search to see how and when it changed hands. You need paperwork to back up your facts.

      If your brothers increased the value of the property after you were bought out, there's nothing you can do about that, but if the property was never theirs to sell, that's another issue.

      You are entitled to an accounting of the entire estate from the executor, as it appears that the estate has not been distributed. Make a demand in writing and give a deadline (say, a week or two to let him find paperwork). If he does not respond with a full and accurate accounting, you will probably have to apply to the court to have him pass his accounts. This is an essential step if you believe that money is missing, which it appears to be, and that fraud has taken place. If you find that the will has in fact not been probated, you may have to ask the court either to compel him to file the probate or to remove him from the picture altogether.

      This is a pretty complicated matter and there is only so much I can say about it in this forum. If you want to discuss it with me in detail, feel free to call me at 709-221-5511. I charge $250 for a consultation.

      Lynne

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  24. Hi Lynne,

    Can an Executor access the statements and activity on investment accounts from the months prior to the date of death or whenever the POA property was invoked? I want to see the statements from July-December when the DoD was in the Fall. Does an Executor need to provide beneficiaries with banking and investment account statements? If so, how often? Currently our Executor is telling us that nothing prior to DoD can be accessed and is refusing to hand over copies of statements.
    Thank you

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    1. excellent site Lynne, some of these stories are very similiar to mine and dont often get emotional but this is bringing up repressed stuff in me.

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    2. Hi Lloyd,
      Estate stories are emotional, aren't they? They can be extra tough when people start behaving badly for no apparent reason.

      Lynne

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  25. sorry just want to give my input here. The executor can access any information past or present, he as acting as if it is the deceased person still alive. They dont HAVE to show you statements, but if refusing or making stories i would be extremely suspicious.

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  26. ive just gotten a distribution statement. The items on the list are legal, hes allowed a percentage for this and that.. im okay with the numbers on the list
    BUT
    I am not okay with what has been done with other issues that are not on this list.
    My question is: if i sign off on this distribution list, can i get my money and then go after him for the items NOT on the Distribution list.

    gics are missing
    lied about parents wedding rings being cremated, that is not policy. duh.
    But what i want to know is can i go after this guy for all the other stuff not mentioned on the distribution list?

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    1. I assume that along with the distribution list there was also some kind of accounting. I'm assuming that you read the accounting and that's how you know some things have not been accounted for.

      Obviously I haven't read the wording of the Release you are being asked to sign, but generally they say that you approve of all of the actions of the executor to date. To me, that means you approve even of the things that are not mentioned in the accounting.

      Since you have concerns about missing items, you should not sign the Release until you have a satisfactory explanation. If it contains the usual Release provisions, signing it will prevent you from raising any objections to any actions done or not done by the executor from the beginning of the estate to the day you sign it.

      I'm not sure what you envision in terms of "going after" him, but if you are a residuary beneficiary of the estate, you do have the right to hold him liable for anything that is missing from the estate.

      Lynne

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  27. Lynne, your blog is greatly appreciated for its informative value and the thoughtfulness you show to your posters.

    I have several questions regarding an estate in Alberta. I'm representing the spouse of the deceased as power of attorney. The executors have presented an offer to pay her out her as beneficiary of 30% of the matrimonial home which has been estimated in the one-year old will, to be $250,000. The offer accounts for a $0 value to the business in which the spouse has 25 shares and never received dividends for her considerable (non financial) contribution to the business over 37 years. The home is in the deceased's name only. There are several other beneficiaries including the executor. I fully realize the best course is to retain a lawyer, however, the budget permits only legal aid so I would like to first produce as much information as possible on my own.

    1. In the presentation of the offer, the value of the home was estimated lower than the will or a realtor's appraisal by the executors who advised they had a private cash offer to purchase the house for $225,000. Would it be reasonable through negotiation to expect they provide me with a full appraisal and documentation of the buyer's valid offer to purchase? In reviewing your chart for probate fees per estate value, I'm wondering if they might be considering this offer to avoid the necessity of probate?

    2. A $0 value to the business is questionable and I want to obtain a history of the business bank account. The executor declined to access it due to the cost. I do know that the business account has recently been closed by the executor, although an application for probate was submitted but grant not yet received. I have the supporting documents I believe should be necessary to approach the bank: power of attorney, evidence of the spouse's share of the corporate ownership, will, marriage and death certificates. But would I need a lawyer to obtain a court order or do banks sometimes consider providing individuals with the bank records in such cases? Has closure of the account been done prematurely or inappropriately?

    3. Would the spouse's acceptance of the cash payout offer then preclude the need for probate and can the application be withdrawn?

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  28. Our 6-year-old grandson was 1 of 9 beneficiaries named in his great-great-uncle's estate 3 1/2 years ago. The executor has refused to provide accounts or to inform our daughter if a trust was set up. We do not have contact information for the other beneficiaries. If we knew there was a secure trust set up, we would be thrilled. Without ranting, I must say this is an extremely difficult executor. We have a lawyer who is pursuing passing of accounts but the executor is refusing to do so and is very likely to continue to be very hostile. Our grandson's portion should be about $30,000, maybe a little higher, which could go a long way toward his post-secondary education. The Supreme Court application for the accounts will cost approximately $2000. If an order is given for the accounts, what happens if the executor refuses? Is that Contempt of Court? We are concerned that the cost of pursuing the inheritance may be prohibitive. We don't want to spend $10,000 if there is nothing left to collect in the end. We believe we cannot recoup any legal fees as the inheritance belongs to our grandson. Can she just get away with keeping the money? Could we get the Public Trustee involved if the lawyer runs into a dead end?

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  29. If an executor refuses to pass accounts or provide proof of a trust having been set up for our grandson, what are the options. Is it worth spending $10,000+ to try to get justice from a very difficult executor? Can she just get away with stealing from a child if we feel it isn't worth spending a lot of money? We fear if we pursue it, it would take years to collect a judgment, if ever.

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    1. Whether it's "worth it" is something that nobody can decide for you. Yes, it's possible that it could take years to take a lawsuit through the courts.

      However, it does not cost $10,000 to pass accounts. It's not a full trial. Before you assume that is the cost, please ask around a few estate lawyers to see what it really would cost. Of course you'll have to balance off the cost against the value of the trust, your own time and energy, and of course the principle of the issue.

      Lynne

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  30. There are 4 adult children in my family. I live in Quebec, two siblings in Ontario, one in BC. The one in BC and I are co-executors. Our Mom passed away in August 2017. The sibling in BC has decided to do all executor things without speaking with me. I have repeatedly requested information, accounting, etc but have been shut out and ignored. Our Mom’s lawyer advised my BC sibling of the law regarding co-executors, but his advice has been ignored. My other siblings and I know that money has been taken from our Mom’s estate. The BC sibling also has all of our Mom’s possessions and will only release them if we each pay shipping costs. We had asked for an account of our Mom’s possessions and were ignored. Do I have any recourse? I am retired without a big income. I am sick about the theft of money and possessions. My Mom’s will was written in Ontario where her lawyer resides.
    Thank you for any advice.

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