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Friday, September 8, 2017

Nine years ago, father died leaving a will. Now the will can't be found and property needs to be sold.

What happens if you don't deal with an estate for years after someone passes away? As this reader's question shows, delay can lead to problems.

"My father passed nine years ago. He had a will and everything went to my mother. Now my mother wants to sell the property but it's still in my father's name. It was never put in her name. Neither the will nor the lawyer can be found. How can my mother sell the property?"

It's not unusual at all for widows and widowers to neglect to take their spouse's name off the property. It's not a good idea to put these things off, as your question clearly demonstrates, but as I said, it happens a lot. Sometimes it's because the widowed person is fully occupied trying to cope with the loss of their spouse and adjusting to their new reality. In other cases, they would have taken care of the name change on the property had they only known about it.

Your mother cannot sell the property without transferring it into her name first because otherwise it's not hers to sell. She will most likely have to apply to the court for probate of the will in order for the land titles office or land registry to transfer the title to herself.

That brings us to the question of where the will might be located. I'll assume that your mother has already searched in all of the likely places with no luck. Have you checked with the probate court to find out whether the will has been through probate? That could be why the will cannot be found anywhere else. It's worth a call or trip to the probate clerk's office. Finding that the will had already been sent for probate would be the best possible outcome here.

Finding the lawyer might easier than finding the will. Has your mother contacted the Law Society of the province in which the lawyer practiced? The Law Society issues the lawyer's license to practice and therefore usually knows where lawyers are. Most Law Societies have a searchable roster of lawyers online that you can check. If you can't find the lawyer on the online roster, call the Law Society and ask about him. You might find out that the lawyer moved, died, or retired. In such case, ask what happened to his files. The lawyer might have had partners in the firm who still have the files, or the Law Society might have appointed a custodian for them.

If the will simply cannot be found, your mother will most likely have to apply to the court to be the administrator of the estate in order to gain the legal authority to deal with the property. That is not particularly difficult to do. The issue is going to be how the property must be distributed. Even though your father had a will when he died, that will cannot now be produced or proved. This raises the question of whether intestacy law must apply.

In most provinces, the spouse of the deceased person must share the estate with the children. This could mean that the house does not go to your mother. There are a lot of factors to take into consideration, the biggest of which is the province of residence. Other relevant considerations would be the value of the property and of other assets (if any) in the estate.

Another factor that comes into play is whether the property you're talking about is the matrimonial home that your parents lived in. In many provinces, there is legislation that gives the matrimonial home to the surviving spouse no matter whose name it was in. That would by-pass the intestacy law provisions.

Because there are so many factors to consider, I  don't think it's a good idea for your mother to try to deal with this situation without a lawyer.




2 comments:

  1. As the writer stated: "He had a will and everything went to my mother", then implies the will was referenced at some point as the provisions were known. Perhaps the widow or someone else subsequently misplaced or destroyed the original. Unless the will is located, settlement of his estate may no longer be as was originally expected or intended.

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    1. I agree. That's why I said in the article that the estate may end up being distributed according to intestacy law. It's strange because, as you say, it appears that at one time the will was referenced. However, if no will can be produced for probate, then what? Possibly the administrator of the estate could ask the judge for directions on what to do. It seems to me that trying to rely on that will if it isn't found is going to be a steep, uphill battle.

      Lynne

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