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Friday, December 7, 2012

Are items that were borrrowed and not returned part of the estate?

You readers come up with the most interesting questions for me to answer! This one has to do with items that were borrowed by a family member and not yet returned when their mother passed away.

Here's the question:

Prior to my mother's death, one of my sisters took all of my mother's personal papers, documents and old photographs related to our family history. My mother told me that my sister just took these items to make copies and distribute them to the entire family. A couple of times my mother mentioned her worry that the items hadn't been returned. When my mother passed away  they still had not been returned. I asked the executor to ask her to return them as I considered them to be part of the estate but he said if I want them then I should do the asking. I then asked my lawyer's legal assistant the question and she said that anything that was not in my mother's house would not be considered part of the estate. Is my sister under any legal obligation to return them to the estate?

Before I answer the question asked by this reader, I have to comment on the fact that the legal assistant in this case is giving legal advice. Never ask legal advice from anyone but a lawyer. Legal assistants haven't been to law school. Their role is not to know the law; it's to know the paperwork and procedures for court applications and legal files.

Highly experienced legal assistants know better than to give legal advice. They know their area of expertise and they stick with it. They can give information about processes and procedures, but never the substance of the law. They know they can lose their jobs for giving legal advice.

Look at it this way. If you needed surgery and the doctor was busy, would you ask the nurse to do the surgery instead? Of course not, because they do different jobs. The nurse helps the doctor do the surgery but hasn't been trained to operate on people. Lawyers and legal assistants do different jobs too.

Ok, with that rant out of the way, let's turn to the question the reader asked. The items borrowed by the sister still belong to the mother. The fact that they were temporarily not on the mother's premises is totally irrelevant. They are part of the estate. According to the facts we have, at no time did the mother transfer ownership of the items to the sister, or intend to transfer ownership. The essence of the transaction was that ownership remained with the mother and the intention of both parties was that the items would be returned within a reasonable time.

The executor in this case is obligated to gather in all of the mother's assets, including these items.

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