Sunday, June 28, 2015
We're applying to be administrators of an estate. Do we need a lawyer?
Posted by Lynne Butler
"My husband's uncle died and did not have a will. My husband and his sisters are the only next of kin alive. We don't believe there are surviving family that will want part of his money/estate. My husband will be applying as administrator. Is probate required? Should we be hiring a lawyer?"
I'm going to say that your husband should hire a lawyer to assist him, because it seems to me that he is already off-track before he even starts. This is not intended to sound unkind, so I'll explain why I think that.
First of all, there is confusion about what administration and probate are all about, which makes me think that the chance of making errors is increased. If there is no will, it's impossible to apply for probate. Your husband is correct in that someone needs to apply to be appointed as administrator, though his sisters have the same right to apply as he does, and will have to sign off. If what you meant to ask is whether applying at all is necessary, then yes, it most likely is required.
Unless the uncle's assets were all either jointly owned with someone else or named direct beneficiaries, then someone has to deal with them. Without a will, nobody has the legal authority to touch anything of his, so the court has to appoint someone. Otherwise, anybody selling or taking the assets is doing so illegally.
Secondly, you are assuming that only people who are currently alive need to be considered. There may be offspring of deceased family members who are entitled to a share of the estate. I don't know anything about your husband's family other than what you've shared here, so it's probably a good idea to go to a lawyer who can tell your husband about how intestacy law in your province will apply specifically to his family.
Thirdly, whenever I see mention of an executor or administrator making decisions about "who will want" a part of the estate, my alarm bells ring. This just isn't his decision. He has to include everyone who is legally entitled to be included, regardless of whether your husband believes they want to be involved. Not doing so would be a huge mistake on your husband's part. Even if he is proceeding with the best of intentions, he simply cannot make a judgment about who wouldn't want a share.
All of this makes me feel that your husband would benefit from a discussion with a lawyer who can give him some guidance on what to do, and what not to do. The paperwork for applying for administration is more complex than that needed to probate a will, and your husband would probably be thankful for assistance with it.
I'm really glad you asked this question before your husband got started on the estate. Often executors and administrators plow ahead without even realizing they aren't armed with the information and assistance they need, and they almost always run into trouble. I can't even tell you how many jaws have dropped in my office when I tell executors that what they've been doing is illegal at worse, and deceitful at best. Most of the time they weren't trying to break any laws; they just didn't know. With a bit of help, your husband can avoid all that strife.