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.

How to list the contents of the deceased's safety deposit box

Many advisors - myself included - have repeatedly told executors that once the deceased has passed away, the executor must check the safety deposit box. But do you know what you're checking for? What are you supposed to take out of there and what are you supposed to leave? Are you supposed to give away the things you find in the box? This post will give you some general information about how to treat the deceased's safety deposit box.

Shortly after the deceased's death, the executor should call the bank and make an appointment to see the box. Note that spouses and next-of-kin are not entitled to do this if they are not joint owners of the box and are not named executors. In the majority of cases, the family members have a pretty good idea who the executor is.

If the original will hasn't yet been found, it's a good idea to check the box very soon so that if the will is in the box, the right executor can be identified.

This is a bit of a quandary at times. Nobody can go into the deceased's safety deposit box except for the executor, but you don't know who the executor is until you open the box and read the will. If this is the case, make an appointment at the bank and take a copy of the death certificate with you. You may find that the bank staff will keep the contents of the box confidential from you while they look into the box to see whether you are in fact the executor.

Once you have established that you are the executor and there is a safety deposit box, your first duty is to list the contents of the box. This is done at the bank in the presence of a bank staff member who acts as a witness. Listing the contents is exactly what it sounds like - making a detailed list of everything in the box.

This must be a detailed list. There is no point to making a listing that just includes "papers and personal items".

Describe the papers. Some common examples:
- title deed to the deceased's home or cottage (include address or legal description)
- Canada Savings Bonds (include bond serial numbers, face value)
- insurance policies (include name of insured, name of company, policy number, face value)
- stock certificates (include name of stock, number of shares)

Many people also keep small valuables such as jewelry, precious metals and small family heirlooms in their safety deposit boxes. Describe the items as fully as you can. Some of these items might have been given away specifically in the deceased's will (such as when a mother leaves a precious ring to her daughter). If that's the case, you may leave the items there until you have progressed with the estate to the point where you are ready to distribute the personal items.

Consider the ownership of the box. Is there another owner of the box? If so, you will have to work with that owner to determine which of them owns which items. This is not too hard to figure out with paperwork, but it's more challenging with items like jewelry.

In your first visit, you will probably not take out anything except for the original will (and as mentioned, only the executor named in the will can legally do this). That is enough to get started on the executor's duties. Make sure that before you leave the bank, you have changed the ownership of the box to the deceased's estate so that you can access it again in the future

One of the executor's duties is to keep valuables safe, so many executors leave the items and papers in the safety deposit box until they are needed. Consider who else has access to the box when determining whether this is the safest place to keep the items. If anything goes missing, you are personally responsible for it.

If your list is detailed enough, you will be able to get started on the probate documents without having to go back and look at the paperwork again. Eventually, of course, all items will be removed as you wind up the estate, but for most estates that is a few months down the road.

10 things an executor can do while waiting for probate

An executor appointed under a Will knows that he or she has to look after the estate. Sometimes, though, it isn't clear to the executor exactly when he or she is supposed to take charge. If the Will is soon going to be sent to the court for probate, does the executor have to wait for that before acting on the estate?

The executor named in a Will must have the court-issued grant of Probate for some transactions, such as transferring the title to a house. But that doesn't mean that the executor can't take care of other matters on the estate before the Probate is ready. The following is a list of 10 of the first things an executor should take care of, whether or not the Probate has been given yet:

1. Make funeral arrangements. This is up to the executor, even if the executor is not the next of kin.

2. Pay the deceased's urgent bills. Funeral and some other bills may be paid out of the deceased's bank account if the executor presents the bills and a Death Certificate to the deceased's bank.

3. Secure the deceased's house or apartment and notify the insurer that the house is vacant. Change the locks. Make sure all assets belonging to the deceased are secure.

4. Check the deceaesd's safety deposit box. Check for newer Wills, title to land, stock certificates, savings bonds, valuable small items.

5. Find the original Will of the deceased. As the court will want the original Will for granting the probate, having just a copy of the Will is not enough.

6. Get copies of the Death Certificate and the Funeral Director's Statement of Death. The executor will need these for obtaining information about the deceased, and transferring thedeceased's assets.

7. Have the deceased's mail re-directed to you. This way you can make sure that you will receive important items such as tax slips and bank statements.

8. Notify various parties of the deceased's death, such as family members, neighbours, employer, banker, doctor, insurer, landlord. Consider placing an obituary in the newspaper.

9. Cancel coverage such as provincial health care, private health plans, credit cards, unions, professional organizations, club memberships and subscriptions.

10. Open an executor's bank account. Deposit any cash you find around the deceased's home. Deposit other funds there as they become available.