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Thursday, September 3, 2015

Executor still won't sell land after 13 years


Being an executor can be tough, but sometimes being a beneficiary is no picnic, either. I recently heard from a frustrated beneficiary who is feeling stuck between a reluctant executor and the cost of a lawsuit. Here is his note, followed by my comments:

"13 years since our dad died but my brother still holds onto the land and pays $10,000 in taxes every year. The land is only worth $350,000 now take half away for paying taxes with? He won't sell because his price is way too high and won't come down to normal market value. Why is there nothing family members can do but sit by and watch or hire lawyers to eat up the remaining amount...stupid."

I'm assuming that your brother is the executor of  your father's estate.

This is an interesting situation because 13 years is just way too long without a really good reason. The only reason revealed by your note is that the executor wants a higher price for the land than he can get. I would suggest that it works for him to hang onto the land, whether he lives on it or farms it, or in some other way benefits from keeping it. It appears to be a situation in which the executor has simply said "no" to any suggestion that the estate be wound up.

That leads me to the question of what, exactly, you and the other beneficiaries have done to request or demand that the estate be dealt with. When a beneficiary does nothing to pressure an executor to wind up the estate, the beneficiary is participating in what is called "beneficiary acquiescence". Basically this means that you've been behaving as if you're ok with it taking so long.

It doesn't mean that you can't change things, because you can. But it will be pretty hard to, say, get costs against the executor for taking too long if you've been going along with his delays. Beneficiary acquiescence is a defense for executors who are accused of dragging their feet.

It's true that if you want to light a fire under a reluctant executor, you will probably have to hire a lawyer. That's the legal system we have; anyone who wants to enforce their rights has to use the courts, and the rules and processes are pretty complicated.

You can save costs by taking the first step yourself. The first step is to let the executor know that your patience has run out and you want your inheritance. Since he is a family member, I expect that any communication about the estate has probably been verbal, but I suggest you now make this demand in writing. This will clearly show that even if you were acquiescing before, you are not doing so any longer. Be polite, but firm about the fact that you want the property sold as soon as possible. Set a reasonable deadline. If there are other beneficiaries, see if they want to add their demand to yours.

You could hire a lawyer to do this for you, but as I said, you can save a bit on costs by doing this part yourself. Ideally, your letter to the executor will open up a conversation about the sale of the property. If you and he get into a discussion about who is going to do what, you may find that a mediator might be more useful than a lawyer. If he absolutely refuses to go ahead, then you may have to hire a lawyer to get the matter in front of a judge to compel the executor to sell the property.

Normally, I would expect an executor who has been delaying the estate for 13 years to be ordered to pay the cost of your lawyer as well as his own from his own resources (not the estate), but this may not happen if you cannot establish that you actually tried to get him to sell it during that time. I know you are concerned about the estate being depleted by legal fees, but there is no automatic right by anyone to have their fees paid out of the estate. Normally an executor is indemnified by the estate for legal fees, but then, most executors are not being forced to get on with it 13 years later.

Another issue that needs to be addressed in all of this is the condition of the land now compared to 13 years ago. You didn't say whether it has a house or buildings on it, but if so, has the executor been keeping up with maintenance? If there are habitable buildings, has he been renting them out to make money for the estate? All of this needs to be factored in if this gets in front of a judge, so that the judge can see how the executor has been discharging his duties.

Nothing about this is cut and dried, but it can be resolved. I wish you the best of luck, and I hope to hear from you soon that this stalemate has come to a satisfactory end.

7 comments:

  1. Hi Lynne

    I am the executor (and one of the beneficiaries) of my father's will. One of his children (my sibling) is not a beneficiary (due to many years of conflict) and is very upset and has started talking about "challenging" the will.

    Assuming the will successfully goes through probate (in Ontario):
    a) is there a time limit for challenging the will or can it be done at anytime in the future?
    b) can the executor begin to distribute the estate immediately after probate or must they wait and for how long?
    c) what happens if residual personal effects and property are distributed to the beneficiaries or sold with the proceeds distributed and then there is a challenge
    d) is there personal liability risk for the executor in such a situation

    Congrats on your new enterprise
    Thanks

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  2. Hi Lynne, I love your site and have a question. My father passed away in April and I am the executor. I recently found out he has an offshore account in a well known bank in Switzerland. I recall him saying years ago he wanted to protect himself from currency risk (CDN dollar declines) so I guess this is what he did to try to avoid it. The money has been there at least 10 years (that is the last statement I find). It is less than $100K Canadian and I don't see it noted on his previous tax returns (he earned a very small amount of interest each month). Do you know how I would repatriate this money legally and above board with the CRA? Thank you very much for all your insights and best of luck with your new venture! Christine

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    Replies
    1. Thanks, Christine. I would ask an experienced accountant for assistance on this matter.

      Lynne

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  3. I have already commented about my situation. I am an Executor/beneficiary. I have an Estate situation going on for 10 years. I have a beneficiary problem. A disgruntled sibling who has had every opportunity. There are no transgressions against me. What makes it worse is the misbehaving lawyers. We are 'only' up to $50-$60K at the moment with legal fees. I am trying to get this to Trial ASAP and to get to the bottom of this. I am even having difficulty doing that.
    I would like Lynne Butler to write a small booklet about my case. I have conducted myself accordingly. I wish she practiced in the Niagara Region.

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  4. My father died Jan 2001 leaving my brother executor. He refused to probate the will so I did with my own money 2006. The will left the matrimonial home to my mother & 1/2 an 11-plex & a duplex it was later discovered father had in secret severed the joint tenancy. My brother took possession of the properties 2008 and left mom in abject poverty so I had him evicted from our Wasaga Beach cottage to pay off her $88,000.00 debts. My brother stopped pay property tax on the 11 plex 2014 the City was going to sell it in a public auciton. There is too much to go into in your blog but basically twice I tried to get police to charge my brother with theft and fraud but they refused. I sold my vacant land next door to pay for legal fees. And got no where. Now we are forced to sell the matrimonial home for 1/3 its' true value to allow for an exhorbitant $450,000. for the apt block & $250,000. duplex so my brother and his family can claim a higher value to increase their half of the estate just to get rid of my brother who has been holding the estate and mother hostage by refusing to sell otherwise. Ontario law allows for severance of joint custody in secret, and it was this 1996 document that my brother knew about, while I and mother did not know existed until recently. If you steal someone's tv you can get charged with theft. I want to get the law changed so that if you steal someone property, you don't have to go to court, the police should charge the culprit with theft. I believe theft should be theft, and making my mother go bankrupt at 96 and me handi-capped 73 to fight in court is unjust. A retired fraud investigator policeman said, I should list in my own words the events and documents backing up the whole story from 2001-2015 and there is a way to present this in my own words to a judge to have a judge decide what the course of action should be. Further due to mom's age 96 get her signature and witnessed by a lawyer in case she dies before I can get to court. My question is this? No one can find the ruling that provides for me to present this to a judge in Ontario? And my lawyer does not think a judge will rule the 1996 document illegal either. I want to do it anyhow, and if a local judge rules this 1996 doc legal then go to a higher court to get the law changed. What do you know about this type of procedure? Apparently, it can be done but how do I find out under what ruling this applies? I tried search on line and your blog seems to be the only blog in Canada that bothers to find clear answers. I how you can help. I need to be ready for court by October 9 one way or the other. Trudi Trahan-upchan ookkrraa70@gmail.com

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  5. Hi Lynne. I told my current lawyer he should connect to you because you are wonderful. An update to the above is that my brother is still delaying and the closing date on the estate sale is now Nov 27th. Since the rental income is over $7,000.00 a month is suits his purpose to take the rents for as long as he can. Some people are just plain evil! But thanks to your blog & all the research info you provide, new lawyer Trent Falldien thinks I have a good chance once the deal is closed to suit my brother for at more than just fraud. I still cannot find that ruling but once the deal closes and the money (I insisted) does not go into the hands of lawyers (Trent agreed) but goes into the hands of court so that will give me time to file a full and detailed lawsuit. I was so distraught last year I just wanted to die. Your blog has given me the will & the hope that someday I will live to see justice in Ontario yet. I do want to point out however, that in Ontario, our laws were made by criminals for criminals and my fight for human rights and justice began at age 7, now 74 & still at it.

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    Replies
    1. A lifetime of fighting for human rights is a lifetime well spent, Trudi. Thanks for all your kind words. Sometimes when I'm up at 3 a.m. writing this blog, those are exactly the kind of words I need to hear :)

      Lynne

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