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Tuesday, November 11, 2014

You haven't heard from the executor 2 months post-death. Is it time to worry?

A reader wrote to me recently about his father's estate, in which he believes he is a beneficiary. He hasn't heard anything from the executor. Is it time to start worrying? His letter and my response are below.

"My father passed away in late September. His new wife of 8.5 years is executor and she likes to drag her feet. I have not seen the will, but from what I understand, from what my Dad told me, is that because of the mortgage insurance, LOC insurance, etc, all debt is paid off and my Dad's wife is to now take out a mortgage for half the house to give this money to me as an inheritance. What would be the steps? I have not received a copy of the will from his lawyer. I have not heard anything from her. Last I heard she signed all the papers at the bank for the insurance. What can I do? The lawyer does not get back with my emails? Does she have a time frame in which this needs to happen?"

There are a couple of issues to address here. First of all you should obtain a copy of the will so that you can determine whether your father did actually set things up the way he told you he did. He could have changed his mind, after all. There is no point doing anything else until you have the facts about where you stand.

There is always the possibility that you are no longer a beneficiary of the estate because your father changed his will. This seems unlikely, since your father seemed to have put a great deal of thought into his estate, and to have settled on a plan that looked after everyone. 

If you are a beneficiary under the will, the executor is bound by law to give you a copy. If she refuses to give you a copy, I hope her lawyer will advise her that you could apply to the court to try to force her to give you one.

Keep in mind that executors usually send beneficiaries a copy of the will at the time they apply for probate. This is usually around three months after the death of the deceased. This is because it takes time to make an inventory of the estate and to determine the value of all assets and debts. The information gets sent out in a package, including the will and inventory. This might be what the executor intends here. Obviously I don't know for sure that she intends this, but it certainly would be the norm. Requirements for notice to beneficiaries varies by province.

The lawyer isn't answering you because you aren't his client. He is bound by client confidentiality. He will only respond to you if he checks first with the executor, and the executor gives  him the go-ahead. Given that you and she don't appear to like each other, I wouldn't expect that level of cooperation. The responsibility for sending out a copy of the will is actually the executor's, not the lawyer's, so you would probably be best off asking her directly.

It sounds as if you don't communicate with her, as you say that you are relying on things that you've heard rather than talking directly with her. However, for the purposes of wrapping up your father's estate, you should put aside any harsh feelings for now and deal with her directly. Relying on second hand information is misleading and frustrating. In my opinion, she should have contacted you, if only to make sure that you had the facts about your father's passing, but she has no legal obligation to contact you immediately following his death.

In terms of a time frame, keep in mind that most estates take a year to wind up. Estates move slowly, partly because there is an incredible amount of paperwork to deal with, and partly because the executor must deal with so many agencies, registries, courts, and companies. As your father passed not even two months ago, it's much too early to worry about the executor dragging her feet. In fact, if she has actually been to the bank to deal with the insurance, at least you know that she is working on the estate.

The executor will have to apply for probate, then transfer the property into her name alone. She will then have to apply for the insurance payments (which you believe she has already done) and apply for the mortgage. Though you say in your note that "all debts are paid", remember that it doesn't happen automatically; she has to provide paperwork to insurance providers and wait for the money to arrive. None of that will move particularly quickly, through no fault of the executor, so I believe it's too early for you to panic.


1 comment:

  1. Hi Lynne,

    I’m so glad I found your blog and am hoping you can provide some guidance.

    My father, who had Alzheimer’s, died in April 2012. There are five adult children, who are equal beneficiaries of his estate. We all have copies of his will and went through it with the executor a few days after his funeral.

    The executor is his common-law wife (she also had power-of-attorney and milked him, but that is another story). The only assets they shared were the house, 50-50 split. His share was to go to us.

    To this day, we do not know anything about the value of, or what forms, his estate. From what we could gather in going through some of his paperwork, we guess it is around $600,000 (not including the house); nothing complicated.

    We did know he had a RIF, and when questioned in the spring of 2013, the executor stonewalled. It took months and direct communication with TD Trust and the executor (via her lawyer) to get them to disburse the RIF.

    We also know that the RIF was included in the probate amount, and have yet to receive any confirmation that this has been corrected. Original probate was filed in December 2012.

    Other than the RIF, we have received one modest disbursement, but no accounting.

    There is absolutely nothing forthcoming. Requests for information are ignored – and we are courteous and cautious in submitting requests -- perhaps every four to six months or so an update is requested. All communication goes through her lawyer.

    My older sister, who has maintained a cordial relationship with the executor as they do not discuss the estate, found out that the executor had bought a house in Hamilton in November. No mention was made regarding plans for our Dad’s house.

    Rather serendipitously, this past Monday I found out that she had moved on 2 November 2014. My brother did some internet sleuthing and discovered the house was listed on the 20 November and sold on the 21 November 2014. Isn’t she obligated to share this information with us?

    What do we do? Her lawyer is unavailable. This is so frustrating. Never mind that she is entitled to a percentage of the estate for acting as executor when she has done such a poor job of it.

    Is there somewhere to take a complaint?

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