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Wednesday, March 13, 2019

My step-father is getting my mom's whole estate and I want to see that will

Although I've blogged pretty often on the topic of who can see the will of a deceased person and who cannot, the question continues to come up on this blog because so many people are confronted with that situation in their own lives. A reader recently asked a question that will look familiar to those of you who are wondering about this issue. Here is the question and my comments:

"My mother recently passed and my step father stated that he receives everything. As her son am I allowed to see a copy of will? My son is her only grand child and I am her only son. I find it very suspicious that we are both excluded from the estate."

Just the fact that you are your mother's son does not entitle you to see her will. I know that seems strange, and perhaps even harsh, but if you're not a beneficiary then you have no automatic right to see the will. However, you are a person who has a reasonable and logical expectation of being included in the will. The executor of the will could exercise his discretion to give you a copy. You haven't said who the executor is, but I'm assuming it's the step-father. If he won't give you a copy of the will, you might end up hiring a lawyer to ask formally for a copy of the will on your behalf, in order to prevent you from going to court to try to force him to give you a copy. Most people would prefer to give up a copy rather than pay for a lawsuit.

Whenever I blog on this issue, someone always suggests in the comments that you wait until the will is probated and then get a copy from the court. That is a good idea, as far as it goes. Once a will goes to probate court, it becomes publicly available. However, there is a good possibility that the will is never going to be probated. That will depend on what assets are in the estate and how they are set up (e.g. whether they are jointly owned).

Your mother and her husband could have set up their assets in such a way that he will automatically own most of her assets on her death. For example, your mother could have named him as the beneficiary of her RRSP. He might be a joint owner of their home. If she had a pension, he would automatically be her beneficiary for that. None of that requires that her will be probated. Most of it won't even be visible by looking at the will because it won't be in the estate.

I say this so that you will realize that even if your mother made a will leaving everything to you, that "everything" might amount to nothing if her assets were set up as I describe above.

You mention that  you find the circumstances to be "suspicious". Before reaching that conclusion, consider factors such as the length of their relationship. If she was married to her husband for a long time, there is a possibility that most of her assets were built up during her marriage. On the other hand, if she had significant assets before her marriage, it is quite possible she would want to leave those to you.

Think about the relationship your mother had with you and your son. Were you estranged, on good terms, on excellent terms? Consider what, if anything, she has said to you over the years about her plans for her estate. Has she ever told you directly that she intended to leave something to you and/or your son?

Another very important factor is whether your mother and her husband had a pre-nuptial agreement. If they did, and if the agreement states that each of them will keep their assets separate, then this supports the idea that something might be "off".

If this just doesn't sit right with you and the executor continues to refuse to give you a copy of the will, consider talking to a lawyer local to you about having the lawyer help you get a copy.




6 comments:

  1. Lynne

    A good question and and a GREAT answer.

    You have helped many with this one, and FREE to boot.

    I don't believe other lawyers out there can add much more to your answer.

    Webeye

    ReplyDelete
  2. how would people find out about the non-probated assets? the accounts only have to list probated assets.

    Which also makes me wonder how does the executor get compensated for discovering and getting assets with beneficiaries distributed? Those can be a lot of effort to deal with and I can see how potential beneficiaries would wonder what happened to all of the assets.

    ReplyDelete
    Replies
    1. How "people" find out depends on who the people are. Most people will never find out because it has nothing to do with them.

      If a will is probated, it should contain a list of all assets passing through the estate. The only non-probated assets should be either a) assets jointly owned with someone who survives the deceased or b) assets that name a direct beneficiary such as a life insurance policy or RRSP.

      If there is an asset that names a beneficiary, nobody except for the named person needs to know about it. Sure, beneficiaries of the estate might be curious but it has nothing to do with them.

      The executor does not specifically get compensated for dealing with non-probated assets because they are not within the executor's job description. You're right that the executor usually has some work to do as he has to at the very least make some enquiries to determine the beneficiaries of those assets. But the executor never does the paperwork for them, and more importantly, does not ever assume the risk of holding and distributing those assets. So the work should be minimal.

      I also agree that people might wonder what happened to all of the assets. Not sure I agree that these people are "potential beneficiaries". In any event, they can't expect the executor to account for something he never did have control of.

      Lynne

      Delete
  3. Hi Lynne,

    I just discovered your blog and it’s is a wealth of information. Thank you for that.

    My situation is this: my dad is terminally ill and will be passing sooner than later. He has a common-law “wife” who has lived with him since I was about 19 years of age. He bought the home long before they met but maybe about 4 years ago put her name on a joint owner.

    Both my dad and step mom have stated that they have separate wills (I have not seen them). In my dads will it apparently states that I am to inherent said items from within the home. And X amount of dollars from the sale of the house when sold. I wa told that when my step mom passes, any residual monies/assets are to be split between me and her son and daughter. I do not know who's will this is stated in or if in both. My dads will states all assets are to be transferred to my step mom upon his passing. And she is the first executor of his will and I am the second if she were to pass.

    My question is: when my dad passes and the home then solely belongs to her. When she sells the home, does she still need to follow the directive in my dads will regarding received my inheritance of X amount of dollars upon the sale of the house. And since it will be solely in her name, can she choose to cut me out and leave me with nothing?

    I have lived with my dad since I was a child and have an extremely close relationship with him. I am in good terms with my step mom. But am nervous as I feel I have no power once my dad passes.

    Thank you for any responses you may have.

    ReplyDelete
    Replies
    1. If the house is in joint names, your father cannot control what happens to it if he passes away. It will pass to your step-mother by right of survivorship.

      Therefore, no matter what your father says about the house in his will, it will go to your step-mother. She can legally change her own will to do whatever she wants with the house and other assets. She may decide to sell the house and give you a portion not because she is legally bound to, but because she knows that's what your father wanted and feels morally bound.

      Lynne

      Delete

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