Will and estates myth-busting

From time to time people say things to me that reveal just how many myths and misunderstandings exist regarding wills. It's not really surprising; misinformation is passed on as frequently as real information and is often more interesting. TV and books fictionalize and sensationalize legal situations. And the internet is quite the culprit too, in the sense that pretty much anyone can start a blog, say they're an expert and talk about anything they like.

I thought I'd take a few minutes and "bust" five of the misconceptions that have crossed my path recently.

1.   Myth # 1: Legal documents such as wills can't be photocopied. Sure they can. In fact after someone passes away, his or her will is often photocopied dozens of times so that copies can be given to the beneficiaries, the lawyer, the bank and the land titles registry. Perhaps the grain of truth that led to this myth is the fact that in order to probate a will, the executor must have the original document. So this myth is not so much busted as adjusted; you can't use a photocopy to get probate (except in special circumstances) but you can use a photocopy for every other purpose.

2.  Myth #2: If a will is in a sealed envelope in a safe deposit box, breaking the seal will invalidate the will. Now this doesn't make sense to me at all. If the will is automatically invalidated by opening the envelope, how is the will ever going to be used? Though this does sound like a great scare tactic for keeping nosy people out.

3.  Myth #3: If a husband and wife make wills at the same time and one spouse dies, the other one's will is invalid. Perhaps this myth grew out of the old practice of a husband and wife having only one will document between them, a practice that petered out long before I started doing wills 26 years ago. In any event, it simply isn't true. Each person does his or her own will and each document stands independently of the other. Wills should be set up so that they will work properly regardless of which spouse passes away first, or even if they pass away in a common accident.

4.  Myth #4: There must be a reading of a will after someone dies. Beneficiaries frequently tell me that they think the executor is hiding something because there has been no reading of the will. This was never the law, though it was once a custom, particularly among wealthy families. It's a custom that lives on in novels and movies, though not so much in real life. These days a beneficiary is most likely to receive notice of his or her inheritance by way of a registered letter. Those who are not beneficiaries are simply not involved.

5.  Myth #5: All family members are automatically entitled to see another family member's will. Nope. Wills are private documents, even after the person has passed away. The question I hear more than any other is "how do I get a copy of my mother/father/sibling's will?" Sorry, but if you're not a residuary beneficiary of the will, you don't get a copy and you're not entitled to see it. I'm well aware that this isn't the answer people want, but it's something they will have to live with. This is a general rule of course, and an exception is a person who is not named in the will but who is automatically entitled to support from the will because they're a legal dependent (i.e. spouse, minor child, handicapped adult child) entitled to support under the will. Other court actions sometimes result in a person getting a copy of the will, too.

I hope this brief myth-busting session will enlighten readers a little bit about some of their concerns. I also hope it will encourage executors and beneficiaries alike to keep asking questions, keep seeking out professional help with wills and estates, and to stay as informed as possible.

Family fighting for right to daughter’s online legacy

I'm attaching a link below to the story of Alison Atkins. Alison was only 16 when she died, and her family wanted to access her Tumblr blog and Facebook accounts because they were worried that she had committed suicide. They wanted answers to try to ease the pain and shock of losing their precious daughter and sister. They also want to keep Alison's memory alive by allowing her friends and school mates to post on her Facebook page.

However, Alison's family is running into problems. The legal system and the policies of the companies who hold Alison's accounts are not providing access. They say the information is private and belonged only to Alison.

Family fighting for right to daughter’s online legacy | CTV News

As you read the story, think about your own family. Think about whether  you want to allow your parents, kids, grandkids, executor - or whoever else is close to you - to access your accounts. If you do, how will you arrange for them to have that access?

Am I entitled to see my deceased parent's will?

Questions about a parent's estate stay with us, don't they? This is particularly true if we don't get a chance to see the will for ourselves. This reader asks a question that many others also wonder about. Here's the question:

"I am son to a father that left us at an early age. He had very little to do with me over the years and only ever paid the small court required child support until I turned 18. He was remarried and never had more kids that I am aware of. He passed away suddenly while I was in my 20s and I received no information or contact regarding his will. As a son would I not be entitled to see his will and if his death happened say 20 years ago and his wife is still alive today, could I do anything?"

This question contains one of the most common misconceptions about wills out there. That a son or daughter is automatically entitled to see a deceased parent's will is assumed by many people. The assumption is wrong. There is no such entitlement. 

Many people find this rule to be counter-intuitive. It makes sense to some people that a child should be entitled to see a parent's will. However, it simply isn't the case. You are not entitled to see a deceased person's will unless you are either the executor of the will or a residuary beneficiary of the will. Normally an executor would only contact those who were to inherit under the will.

A will is a private, personal document. As such, nobody is allowed to see it that has no legal reason to see it. Wanting to see it doesn't count. In my view, this is one more reason why people need to be super careful about who they appoint as executor, as we all know there are some executors out there who take advantage of privacy rules to deprive legitimate beneficiaries of their inheritance.

My guess would be that your father left his estate to his second wife and also made her the executor. If you (and any siblings) were over the age of 18 at the time and were not handicapped, you would not have been legal dependents and therefore he would not legally have to leave anything to you.

Your question about "doing anything" is a bit open-ended. If you are asking whether you could ask to see the will, yes you could, but you have no legal right to insist upon it. If you are asking whether you could get anything from the estate, I believe your chances are slim to none. In the absence of legal dependence on your father, what would be the basis for a challenge? And just as importantly, what would be left of the estate to collect on?

Why won't Power of Attorney show me the Will?

I had a question from a reader who seemed somewhat annoyed because the person acting under an Enduring Power of Attorney wouldn't show him the Will of the person who gave the Power of Attorney. With reader questions I don't always have full facts, and that's the case here.

My first question would be about the relationship of the reader asking the question to the person who gave the Power of Attorney (the "donor"). Unless the reader is the executor of the Will, I don't see that he or she has any right to ask to see the Will. The fact the reader is a spouse or child or grandchild of the donor won't give the reader any right to see the Will.

My next question would be whether the donor is alive or deceased. I assume the donor is still alive because there is someone acting under a Power of Attorney. However it also occurs to me that perhaps the donor has passed away and the Power of Attorney is refusing to hand it over to the executor. In other words, maybe the reader is the executor. If the donor is still alive, his Power of Attorney should not show the Will to anyone but the named executor. If the donor has passed away, the Power of Attorney MUST give the Will to the executor. But he still can't show it to anyone else.

In due time, the executor will notify everyone who is a beneficiary under the Will and tell each of them what they will inherit.

Wills aren't public property, though that is hard for people to accept. People can get pretty indignant when I tell them they have no right to see their parent's Will. For more about who can see Wills and who can't, click here to read my earlier post about that.

Is the executor obligated by law to provide a copy of the will to anyone who asks?

This is a question that I received from a reader by way of email. It's a question I hear a lot, so I thought I'd share the answer.

No, the executor is not required by law to give a copy to anyone who asks. Plenty of people who have no business asking will ask. Others who believe they have a legitimate reason to ask will also request a copy, though they may be mistaken about whether legally they are entitled to that. The executor is responsible for safe-guarding the deceased's private information.

The executor is in almost every jurisdiction required to provide a full copy of the Will (and supporting probate documents if he/she applies for probate) to residuary beneficiaries of the estate. These are the people who have a financial stake in the overall estate, and have the right and obligation to watch over what the executor is doing. They need to see the Will to do that.

Individuals are not entitled to have a copy of the Will simply because they are related to the deceased. I realize this is difficult for those individuals to accept, and difficult for the executor to enforce.

Beneficiaries who are going to receive a specific gift from an estate, such as a piece of jewelry or a specified sum of money are not entitled to have a copy of the entire Will either.

Others to whom the executor may provide with a copy of the Will are those who are in charge of transferring an asset that belongs to the deceased, such as the Land Titles Office, a Transfer Agent for stocks and shares, or Canada Revenue Agency. These people must verify that the executor is, in fact, the person legally entitled to give them instructions to deal with the deceased's assets. Also, the executor will provide a copy of the Will to the accountant who prepares tax returns on behalf of the estate.

Can I maintain privacy during estate planning?

For many people making Wills, privacy is an issue, and rightly so. I often hear from parents that they don't want to let their children know how much money they have. Their dilemma is that if they have their kids involved in the estate planning process as they would like, they will have to divulge all of their financial information.

This brings many people to a standstill. They want the children to know what role they will be expected to play when the parents pass away. They want the children's input into issues such as who will get the family home or cabin or business. But they are just not comfortable revealing their net worth and other details.

I can see the parents' point. Some are worried that if one of the children is experiencing financial setbacks, that child might start pressuring the parents for money. Some are worried about word getting around the neighbourhood that they have a few bucks, leading to robbery or interference by neighbours. And some just feel that it's none of their children's business.

So is it possible to talk about estate planning without letting everyone know the numbers? Yes.

I would suggest separate meetings. One can be held between the parents and the lawyer only. In this meeting, all values and amounts should be disclosed by the parents. This is important because one of the things a lawyer will do during estate planning is give an idea of whether there is going to be a significant tax hit. As mentioned in other posts, distributing capital property such as real estate (not your principal residence) or shares of a private company may lead to capital gains tax. As part of planning, a person need to be aware of whether there are assets in the estate to pay for those taxes, or ways to minimize or eliminate the taxes. The lawyer needs to know approximate values to do that. Once they've dealt with taxes, the parents will be able to determine what is left to give to the beneficiaries.

Remember that lawyers are bound by client confidentiality and cannot and will not disclose information without a client's consent.

In the second meeting, the kids can be invited to attend. All of the issues that have an impact on them can be discussed. The parents can find out what is important to the children, and vice versa. In this meeting, they can talk about items or assets such as the family home, the cabin, or treasured heirlooms, without values being named. The parents can talk about the kind of assets involved, such as life insurance, pension or investments, without stating the values.

It's reasonable to say, should the children ask for specific values, that the point of the meeting is not to crunch numbers but to talk about issues and ideas.

I'm definitely in favour of families getting together to share ideas and input on an estate plan, but I'm also very much in favour of each individual maintaining a comfortable level of privacy.

I discuss this in more detail in my upcoming book, "Estate Planning Through Family Meetings".

Should I give my executor a copy of my Will?

Although there is never one answer that is right for everyone all the time, there is one thing that is always a bad idea. That is, not letting your executor know that he or she is your executor.

You have some options. You could choose to give your executor a copy of it. On the other hand, you could choose not to give your executor a copy but simply to let your executor know that he or she has been appointed under your Will.

What are your concerns in letting your executor have a copy of the Will? Most clients cite privacy as the main issue. They say they don't really want their executors to know personal, financial and business information until it's necessary for them to have it (i.e. when the client passes away). Perhaps this could be addressed by keeping financial papers only with the original Will, which won't be handled by the executor until after the death of the testator.

Another consideration for some executors arises when one of their children is the executor. They don't necessarily want any of their children to know their plans, because they feel that might cause a problem should they change their plans later. They feel they might have given rise to certain expectations that could end up being disappointed.

Many married couples name each other as first choice for executor, with one or more of the children being appointed as an alternate executor. They often tell the child who is the alternate executor that he or she has been appointed, and that the other parent has a copy of the Will.

Whether or not you give your executor a copy of the Will, you should retain control of the original and let your executor know where it is kept. It is essential that your executor knows where to get the original as it is needed for the administration of your estate. If your executor has to search for it, this will lead to unneccessary delays, and of course the possibility that your executor won't be able to find it. Usually Wills are kept in the bank safety deposit box, the lawyer's office or in a safe at home.

If you've ever prepared an inventory of your assets and debts, perhaps as part of your Will-planning with your lawyer, or w,perhaps ith your financial advisor or pre-paid funeral services, consider keeping that inventory with your Will. This is a great way to help your executor administer your estate, because your executor will know certain important information, such as where you bank and where you hold your insurance policies.

Why can't I see the Will?

Over the years, I've been asked by dozens of family members and other interested parties how they can see someone's Will. In each case, it wasn't a general interest question, but a request that I help them obtain a copy of a certain individual's document. Usually, but not always, it was the Will of someone who had passed away. I find it interesting that a lot of people believe they have a right to see a Will just because they want to see it, which of course is not the case.

A Will is a private document. Lawyers advise their clients to keep their original Wills in the safe deposit box at the bank, in a locked safe at home, or in the lawyer's vault. Part of the reason is that they don't want to lose the original Will, but just as importantly, they don't want it to be read by anyone. An individual can choose to show someone his or her Will if they want to, but nobody, including the executor named in the Will, has an enforceable right to see it if the owner doesn't want to show it.

After the owner of the Will (the testator) has passed away, things change, but the Will is still private. If the Will is held at a bank, lawyer's office or trust company, it won't be released to anyone except the executor named in the Will itself. Nor will it be shown to anyone else. There could be an exception where the testator left written instructions to give it to someone else, but that is extremely rare.

The most common reason given for wanting to see someone's Will is that the individual asking the question believes that he or she is a beneficiary of the Will. They want to confirm this, and to find out what they will inherit.

In Alberta, when a Will is probated, the executor is required to provide every beneficiary with a notice by registered mail of what they are going to inherit. If they are inheriting a portion of the residue of the estate, they will receive a copy of the whole Will along with copies of all documents (including inventory of assets and debts) filed with the court. If they are receiving a specific gift, such as a piece of jewelry or a stated amount of cash, they will not be given a copy of the Will, nor are they entitle to receive one. The notices are usually sent out by the lawyer's office.

Not all estates go through probate, so this process does not cover everyone. However, the same rules apply. If you are a residuary beneficiary of an estate, you are entitled to see the entire Will. Otherwise, you're not.

A problem sometimes arises when an executor is overly secretive about the estate. This could signify a problem, but not always. A family member who is positive that he or she was named as a beneficiary in the deceased's Will may be suspicious or upset if the executor refuses to say whether the person is or is not still in the Will. In a case like this, if you want to see the Will, you should consult an estate litigation lawyer to represent you in a formal request for the information you want. Sometimes a court order is required.

There are other reasons for wanting to see what's in a Will. For example, if you are acting for an incapacitated adult under an Enduring Power of Attorney or Personal Directive, you will likely be allowed to see the incapacitated adult's Will while he or she is alive. This is because you will have to make decisions for the incapacitated adult that might be affected by what is in the Will.

Who is entitled to see your Will?

During your lifetime, you are entitled to show your Will to anyone you like, but you are also entitled to keep it private. You should either give the executor named in your Will a copy of the Will, or at least let him or her know where the original Will is kept. Other than your executor, there may not be anyone who needs to know in advance what is in your Will.

After you have passed away, the executor will use the original Will to apply for probate, if necessary, and if so, the original Will is filed at the court. When a person passes away, it's quite common for family members or close friends to ask whether they are named in the Will. I've often been approached by individuals who are angry or insulted that the executor won't let them see the Will to find out whether they are beneficiaries. I'm always surprised that people should be so angry that they are not allowed to see private papers, even though the executor has told them they are not beneficiaries.

Unfortunately for those who are curious, the executor is entitled, in fact is expected, to maintain the privacy of the deceased person. The Will is a private document and should not be shown to everyone who expresses an interest in its contents, regardless of whether that person wonders if he or she is a beneficiary. In Alberta, everyone who is a beneficiary of an estate will, at the time probate is applied for, receive a registered letter advising them of the gift left to them under the Will. Those who are going to inherit a share of the residue of the estate will also get a photocopy of the Will and a photocopy of everything that was filed at the court. Beneficiaries who are going to inherit a specific item or a specific sum of money will get the notice but will not get a copy of the whole Will.

Occasionally, an individual will have a reasonable expectation of being a beneficiary but has not received a notice. For example, the person might have been told by the person who is now deceased that he or she would be a beneficiary. Or, the person might have a copy of an earlier Will of the deceased, in which the person was named as a beneficiary. When I've been hired in that situation, I have written a letter on behalf of the person, asking the executor whether my client was a beneficiary and explaining that we believed there was good reason for asking. Even then, we might not be able to see the actual Will, though we will generally receive an answer because the executor doesn't want an uneccessary lawsuit.

The fact that you are related to the deceased person is not in itself a reason to allow you to see the deceased's Will.