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Monday, November 23, 2015

Can I help with your question?

I've been getting some interesting calls lately. Callers are taking advantage of my arrangement of a one-time consultation to ask about and discuss things they need clarified. I'm getting a few of the "can he do that?" questions, of course. Those are the ones where someone is involved in an estate and needs information and advice about actions being taken by someone else who is also involved in the estate, as a beneficiary, executor, or family member.

I'm also getting some calls from people who want to explore their options. While executors usually have an estate lawyer to speak with, beneficiaries usually don't. They are often the ones calling me to discuss what to expect and what to do next.

Not all callers are from my home province. I'm pleased to say that I've had a few calls from other provinces as well.

I remind all readers that I'm available in person, by phone at 709-221-5511 or by email at lynne@butlerwillsandestates.com for consultations. I charge a flat fee of $250 regardless of the length of the consultation. Let me know if I can help.

14 comments:

  1. My mother had a 1999 Will (died 2015) Executors listed as my sister and myself. No real estate. TFSA, mutual fund and regular account. Her Bank says need probate (verbal only nothing in writing from Bank). Is Probate absolutely required ?

    ReplyDelete
    Replies
    1. Yes, it probably is. If the bank won't release the funds without probate, you cannot force them to. Keep in mind that when you ask a bank to release funds, you are going to them and saying, "this is someone else's account but I want you to give it to me". They rely on the probate because it's a court order that indemnifies them for paying out someone's assets to a different person. If other beneficiaries come out of the woodwork later, the bank won't be held liable.

      There is sometimes an alternative available where the asset in the bank is the only asset, and it's so small that it would be pretty much drained by the cost of probate. In a case like that, a bank will sometimes agree to take a signed indemnity from everyone in the estate rather than going through probate. However, it's not done often because it's completely voluntary by the banks. In your case, there are 3 assets and it seems highly unlikely that together these assets are only a couple of thousand dollars.

      I think you're stuck getting probate. However, without real estate, it should be a relatively simple and quick matter.

      Lynne

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  2. The superb highly informative blog I’m about to share this with all my contacts. Macreelaw

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  3. Hi Lynn
    My brother passed away in Ontario and before he passed, he verbally gave me directions to make sure no other family members touch a cent that he has, if he has any money left in his account and WSIB. He left what he has to me and asked me to distribute his money for him to those deserving it. I do have my mother and 3 siblings still alive, what do I do in this case? These siblings live in Newfoundland and I have moved to Ontario. My brother passed away in 2014 and the WSIB funds are still waiting to be withdrawn and his bank also has funds to be withdrawn. How do I go about obtaining his funds. I was the only person in his life that he ever trusted and I was a mother, sister and friend to him his whole life. Thank you Tina

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    Replies
    1. I take it that your brother didn't leave a written will. As I understand your question, you have only his verbal instructions to rely on, and I;m afraid they aren't going to help much.

      In order to gain access to the funds, you or someone else must apply to the court to be appointed as the administrator of his estate. It's quite possible that you may be the only person interested in taking on the job, but your mother and siblings have as much legal right as you do to apply.

      Assuming you are the one who applies to the court, you will be bound by the laws of intestacy to distribute the funds in the way the law says. I understand that the arrangement your brother wanted may be much different than that, but in order to make sure his wishes were carried out, he would have had to make a will.

      I know this isn't really the answer you wanted, but it's the way things work. Best of luck with it.

      Lynne

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    2. Thank you for your insight. It might not be what I want to hear but it's fact so that is what matters.

      Delete
  4. My father passed away and left debt from credits cards and Line of credit. There is no money in his accounts or any assets to cover the debt. What can I do to get the credit card department and the other departments at the bank in sync to recognize there is no money in the estate to pay the debt? I have been getting statements requesting payment for the credit card debt. Do I need to have my fathers estate declared as bankrupt?

    Thanks for any connect on this subject.

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    Replies
    1. No, you don't have to have it declared bankrupt. Credit card companies are notorious for bugging people endlessly in the hopes that they will pay the debt just to end the harassment. I have been told by many, many executors that credit card companies have told them they must pay the debt themselves. But you don't have to.

      Make sure that you've maximized any money due to the estate, such as a CPP death benefit, any outstanding paycheques, and collecting any money people owed to your father. Once you've done that, you'll know what, if anything, you have to work with. If there is anything there, the best you can do is offer the creditors a few cents on the dollar.

      Assuming there is nothing to work with, write each creditor a letter stating that there are no estate assets and the debt cannot be paid. Request that no futher correspondence be sent requesting payment. Make sure you sign it as executor or administrator.

      After that, ignore them.

      Lynne

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  5. Hi Lynne, my fiancé father passed away almost 2 years ago in August and his uncle is the executer of the fathers estate.. He will not give us any information regarding the will and if there were any investments that he had in the United States but he keeps telling us that it takes a year for it to be finalized and then we would know.. and then it changed to we have to finish the tax year and we still don't know anything...
    I was just wondering if it is common to take this long and what should our plan of action be against the Uncle... I don't want to cause trouble within the family if we take a legal route and not need to do it :(
    Thank you for any help you may be able to offer
    Ashley

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    Replies
    1. Hi Ashley,
      You're right that hiring a lawyer might cause an issue, because people really do react to it badly. However, if it turns out to be your only option, you may have to do so anyway.

      To answer your first question, yes it really does take a very long time for estates to be settle. A year is about right. When he talks about finishing the tax year, that doesn't really make sense, but I suspect that what he means is he wants to wait for the Tax Clearance Certificate. Unfortunately, the executor cannot apply for that until the estate is pretty much finished, and it can add another 6 months to the waiting time.

      Because the tax clearance takes so long, most executors will agree to distribute some of the estate while holding onto enough to pay any future taxes. That's the executor's choice, though like I say, most will agree to do that.

      The lack of information is another matter. I don't get why it's all so secretive. If your fiance is a residuary beneficiary under the will, then he is entitled to see the will and to see the financial information. The executor may not realize that this is a legal right and can be enforced through the courts. I would suggest making a request in writing (email counts as writing) that describes exactly what you wish to know. You can still be polite while being firm. In the letter, your fiance should state that he has a legal right to the information.

      This is assuming that your fiance is a residuary beneficiary. If he is not, he doesn't have the right to see the will. However, the executor's answers are coy (and very controlling) but do not say that your fiance is not a beneficiary, so we should assume that he is at this point.

      If you don't get a satisfactory response, your options will be either to wait until the executor comes up with some information, or to hire a lawyer to use the courts to get information out of him.

      Lynne

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  6. Hi Lynne

    Thank you so much for this opportunity to ask legal questions. It is most certainly apprediated. My father passed away in 2013, apparently, without a will (step refused to provide any details regarding whether or not he had one). In a separation agreement between my father and mother over 20 years ago, the family home was to be left to my brother, with my father having only a living interest in the property until his death or unless he chose to vacate the property. We do have the separation agreement, however, my father's widow has now taken posession of the family home, started to renovate, have changed the locks and will not allow my brother access. My brother has very little money to fight this in court, so I am doing what I can to help him. Is the separation agreement still valid? Can it be usesd to show ownership? What can we do at this point, if anything, to help our brother take back what is rightfully his? Thank you in advance for any assistance you can offer.

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  7. So my sister recently died after a very painful agonizing period battling cancer. She has no other siblings. I am both the Executor and named beneficiary as indicated in her will.

    Since I had Enduring POA I was able to take care of her financial affairs. Most recently, she received a cheque for an insurance settlement. I have access to her bank account(s). What happens to this cheque? Can I endorse it to myself? Deposit it into her account and let it sit there until I find out if her estate is subject to a probate? I am not sure if a probate is necessary but I understand the BC Government wants their money so the Premier of the province can buy new shoes and go on expensive trips.

    ReplyDelete
    Replies
    1. It would be a mistake to endorse estate money directly to yourself. You'd be better off opening an estate account (and to be clear, the POA has nothing to do with it anymore; you would open this account based on the will). Put all estate money in, and use that to dispense money out. That way you won't run into any tax questions.

      I don't know why it would "sit until you find out" about probate. You're the executor and you're the one who's going to make that call. If you're not sure whether probate is needed, ask for advice from a lawyer. There is no need to sit and wait for anyone else to make a decision, because there isn't anyone else.

      Lynne

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