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Thursday, June 17, 2010

Does an incarcerated person forfeit his or her inheritance?

Executors of estates can easily get bogged down whenever there is a beneficiary named in the Will who is in an unusual or unexpected situation. One of the situations in which it isn't always obvious how an executor should proceed is that of one of the beneficiaries of the estate being in jail. For the sake of this post, let's assume that the beneficiary in question is going to be in prison for many years to come.

If the person is incarcerated, is he going to forfeit his inheritance?

No, he or she is not going to lose the inheritance just because of the fact that he or she is prison. If the Will says that no beneficiary who is incarcerated shall inherit, then the answer is different.

In some provinces, there is a requirement that an executor who is applying for probate of a Will must give notice in writing to each beneficiary of the estate. If a person is incarcerated, he or she still has to be sent a notice in the same way that any other beneficiary would be notified.


  1. Does the executor have to setup a trust for the incarcerated beneficiary? Would the executor have to manage it?

    Can an incarcerated person setup their own trust?

    What if the person has just been arrested but not yet convicted? Would the trust have to be setup?

    Is the law different in Quebec?

  2. Hi there,
    No, you don't have to set up a trust for the incarcerated person. I've only had one case where a beneficiary was incarcerated so I put my head together with the manager of trust here at Scotiatrust, who has seen it all over the years. Her experience with an estate with an incarcerated beneficiary was the same as mine.

    The incarcerated person is entitled to receive his or her inheritance just like anybody else. However, the logistics are a little more challenging, particularly if the person is incarcerated in another province, as was the case with my file. If the incarcerated person will tell the executor his or her bank account number, the executor can deposit the cheque directly on behalf of the person.

    I should say here that if the incarcerated person is in jail for killing the person whose estate we are talking about, that's a different situation.

    A person who has been arrested but not convicted is in the same position as anyone in the public at large, and the executor can treat that person exactly the same as other beneficiaries.


  3. Lynne, can an incarcerated person act as the Executor of an estate?


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