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Saturday, November 28, 2015

Estate is going to the very people the deceased thought didn't deserve it

When a person has specific, heartfelt wishes for his estate, it is essential that he have those wishes made into a proper will, A reader recently wrote to me about her brother's estate, which is not going to go the way the brother wanted. Here are her question and my comments:

"My brother passed away 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. 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? He died a year ago and the funds are still waiting to be withdrawn.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."

Unfortunately, things are not going to go the way your brother wanted.

In Canada, a will must be written down to be valid. Verbal instructions are pretty much worthless in this situation.

Where a person dies without a valid will, the law says who gets the estate. It does not allow you to rely on your brother's verbal gift to you, and it certainly does not allow you to decide who deserves a part of the estate. This really is sad, because it sounds as if you and your brother had a real heart-to-heart chat about what he wanted, but his wishes can't be carried out because he didn't put them into a properly worded will.

Your brother's estate will go to his mother. The law of intestacy says that if your brother left no spouse and no children, which I believe to be the case based on your question, then the next people in line are the parents. It sounds as if his Dad has passed away, and therefore his mother is the beneficiary.

If you want to communicate your brother's verbal wishes to his mother, you can do so, but you have no legal right to insist that she follow them. The law is about legal rights, not moral rights, so you can't force her.

In order to obtain your brother's funds, you - or someone else - must apply to the court to be appointed as the administrator of the estate. Your mother and siblings have just as much right to do this as you do, but by the sound of it nobody else is particularly interested in taking on the job. Once you are appointed by the court, you will have the legal right to access and collect in your brother's funds, and you will be bound by  law to carry out your responsibilities including paying any bills he left behind, filing his income tax return, and paying the balance of the funds to the people who are entitled to them by law.

As a side note, I should add that if your brother made a will leaving everything to you with the instructions that you distribute the funds to those that deserve them, I'd anticipate some real problems with it. That instruction would be much too vague. It might be cured by some direction as to what a person had to do to be deserving but it's possible that a will that vague might not be upheld in any event.

I know this is not really what you want to hear, and that it probably adds to your grief over losing your brother. I wish I had better news for you. This very unfortunate situation happens to people every day. They don't make a will, and their estate ends up going to the very last people they would have wanted to benefit. There is only one sure way to direct your estate where you want it to go, and that's to make a solid will.

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