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Sunday, June 28, 2015

We're applying to be administrators of an estate. Do we need a lawyer?

I received an interesting question recently from a reader asking about applying for letters of administration. Anyone out there who is in a similar position should take a look at the following question and answer:

"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.


5 comments:

  1. I'm in Ontario and just finished applying for trustee of an estate without a will and paid probate at the same time. I used a lawyer for the process. The day after I received the trustee certificate, I began to search for assets which the law office, via a bank, said did not exist. Within five minutes I found the "non-existent" assets. I won't be surprised if the accountant I've hired uncovers more assets, as the deceased person habitually did not keep his finances in order. At. All.

    The law office insists that they, not the estate trustee, must file the amendment with the court for additional probate. Is this so? Can I not file this myself? Are there forms available online to do this?

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  2. Thank you for taking the time to answer my question. And for the great advice. I read what you wrote to my husband and we have decided to contact a lawyer tomorrow.

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  3. 1042, The lawyer I am with did not know that intestate estates cannot disburse for a year post death. They also told me a holograph will needs two witness signatures. Both which are wrong. It's time consuming, but inform yourself.

    With an intestancy you will also be restricted in how to handle the estate while it gets sorted out. Two of my family members are both handling different estates. The difference in what they are able to do and how they are treated is stark, compared to myself when I come through the door holding a trustee certificate for an estate without a will. Immediately you are cast as being suspicious and almost blameworthy for the deceased person's foolishness in not having left their affairs in order. Good Luck.

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    1. I definitely agree with your statement to "inform yourself". If people need to know more but can't afford to sit in the lawyer's office for hours on end, they might find a book useful (yes, like the ones I write, specifically because good Canadian estate information is hard to come by!).

      I also agree that it's a lot harder to deal with an estate when you're an administrator as opposed to an executor. This is because an executor's authority actually arises from the will, so there is a legal right to act as soon as the deceased has passed away. But in order to get a court order, an administrator has to try to wrestle information out of people who don't want to say anything without a court order! It's an exasperating circle.

      I don't know of any blanket (i.e. across the country) rule that no intestate estate can be distributed for a year. I assume that rule is local to you.

      Lynne

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  4. Lol! Wrestle is a good word.

    I'm in Ontario, Lynne. I don't know how the other provinces handle this.

    http://www.ontario.ca/laws/statute/90e22
    Scroll down to #26.


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