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Thursday, February 25, 2016

How do I know if I'm a beneficiary?

In the usual course of an estate, the executor obtains the will and lets everyone in the family know who is going to inherit. If there are beneficiaries outside the family, such as a charitable organization, the executor writes to them to let them know. But what if you're a family member of someone who has recently passed away and you haven't heard a thing? How do you find out if you're a beneficiary of the estate?

The rules for executors notifying beneficiaries vary from province to province. Generally speaking, if you are going to receive a notice, it is supposed to contain facts about the estate, such as what assets and liabilities exist. Keep in mind that it takes some time for an executor to gather that information from banks, land registries, accountants, lawyers, insurance companies, etc. It's not going to happen overnight. Don't panic if you haven't heard anything for a few weeks. Give the executor a chance to get organized.

Also keep in mind that many wills contain a phrase similar to "any beneficiary named in this will must survive me by 30 days". When a will contains that kind of clause, and every will should have a variation of it, the executor cannot even know for sure who the beneficiaries are until that amount of time has passed.

Some beneficiaries expect that a Reading of the Will is going to take place to inform them of their rights. In reality, they don't take place very often. Though I personally feel that an awful lot of estates would benefit from holding a Reading of the Will, they are not required by law and most executors do not hold one. Don't draw any negative conclusions about the lack of this procedure. If you feel that your family would benefit from having a formal Reading of the Will, you can suggest it to the executor but he is not obligated to follow your suggestion.

Another method that beneficiaries attempt to use to find out information is contacting the estate lawyer directly. This rarely works for them, for the simple reason that the estate lawyer works for the executor and not for the beneficiaries. If a beneficiary asks the estate lawyer for something - say a copy of the will to find out if he or she is a beneficiary - the lawyer cannot release that information to the beneficiary without the approval of the executor.

So, if all of these things don't get you the information you want, what are your options?

Your best option is to ask the executor directly. The executor may tell you that you are a beneficiary and that notice will come out to you by mail once information is available. Or the executor might tell you that you're not a beneficiary and that's why you didn't get a notice.

Many beneficiaries tell me that they do not believe the executor when they are told they are not beneficiaries. Others tell me that when they ask for this information, the executor becomes hostile and won't say anything at all. Therefore, asking the question and (maybe) getting an answer are not enough. This is a more difficult time for beneficiaries than most people may realize. Wanting to be a beneficiary is not just about the financial inheritance; it is just as much, if not more, about wanting to know you were remembered by the deceased person.

At that point, you should make a request in writing to the executor. It's time to start creating the paper trail you will need if the matter spirals out of control and lands in court. The written request should ask for a copy of the will or a written confirmation that you are not in fact a beneficiary after all.

You may wish for the written request to be made on your behalf by a lawyer. This has both an upside an a downside. The upside is twofold; one is that you will get information about your rights (assuming you turn out to be a residuary beneficiary and not a specific beneficiary). The other is that executors who bully beneficiaries are less likely to bully lawyers. The downside is that plenty of people who get a letter from a lawyer react badly and take it as a threat, so communication between you and the executor may become even more strained.

However, most executors won't say in writing to a lawyer that someone is not a beneficiary if the person is in fact a beneficiary. The process of writing the letter and getting a response may reveal other problems if they exist (such as missing assets)  or may simply get you the answer you require about your status as a beneficiary.

If you still cannot get a response, or if you still don't believe you're not a beneficiary, you must get a copy of the will itself and have it explained to you by a lawyer. Remember that once a will is filed for probate, you can get a copy of it from the court, and that might answer your question without the need for any further steps. However, in the cases where the will hasn't gone to probate and the executor won't cooperate, you will have to try to force the executor to give you a copy. This means a lawsuit.

You are not guaranteed success just because you go to court. Before launching into a lawsuit, get legal advice about whether it's a good idea, and talk about your chances of success. If you are, say, an adult child of the deceased - a person who might logically expect to be included in the will - you would probably have a decent chance of the court ordering the executor to give you a copy. If you are simply a friend or a more distant relative, your chances are lower. A will is a private document unless and until it is filed with the probate court and not everyone has the right to see an unprobated will just because they want to.



6 comments:

  1. Hi Lynne,
    Does everyone, anyone have a right to see a probated will? How does one get to know if it has been probated? Can one contact Probate court, ie Ontario?

    ReplyDelete
    Replies
    1. Anyone can do a search of the record of probated wills by contacting the superior court of the province or territory. It's called either the Supreme Court or the Court of Queen' Bench, depending on the province. In some places, you can do the search online.

      Lynne

      Delete
    2. Hi Lynne,
      My sibling was notified 3 months ago that she, myself and our brother are primary beneficiaries in our aunts will. She died in November 2015. The executor was the person who notified my sister. We haven't heard anything since, that's 3 months ago and he is not responding to our email. Are we entitled to request a copy of the will ? Any advice of where to go from here ?
      Thank you so much.

      Delete
  2. Is there a defined process (in Ontario) for notifying a minor?

    (Infant great-grandchild who is a non-residual beneficiary)

    Thanks

    ReplyDelete
  3. My birth father and mother who I grew up with got divorced when I was 14, my mother remarried and made my step father adopt me so they could get additional monies on his pension for adding me. 10 years ago my birth father passed away and I had spent several years visiting him prior to his death. My father's brother, my uncle Calvin passed away last February 2015. My oldest birth sister who I have grown up with told me last September 2015 that he had died but that my middle birth sister (whom I also grew up with) told her not to contact me as I was adopted at 15 years old out of the family. We were all born to the same mother and father, our same mother got remarried to our stepfather. My oldest sister is trying to get me to be part of the estate which is over well $1,000,000 but we are not sure how to go about this as the middle sister does not want me included, so that she can get more money for herself.

    I have contacted the birth hospital and obtained my records and the Registrar General who also sent my records to me. The Registrar Generals office, the Attorney Generals office and the Service Canada office all answered my inquiry about the estate with, as long as you are a blood relative by birth you should be included as an heir to the estate.

    Would you be able to provide any help? At this point is all about greed and not about family?

    There was no will, the estate has been probated, my uncle's farm has been sold and money is now ready for distribution to the heirs.

    ReplyDelete
    Replies
    1. I disagree with what you've been told so far. When you were adopted by your step-father, you ceased to be the daughter of your birth father for all legal purposes. Legal adoption severs the blood relative tie.

      Lynne

      Delete

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