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Thursday, February 25, 2016

How do I know if I'm a beneficiary?

In the usual course of an estate, the executor obtains the will and lets everyone in the family know who is going to inherit. If there are beneficiaries outside the family, such as a charitable organization, the executor writes to them to let them know. But what if you're a family member of someone who has recently passed away and you haven't heard a thing? How do you find out if you're a beneficiary of the estate?

The rules for executors notifying beneficiaries vary from province to province. Generally speaking, if you are going to receive a notice, it is supposed to contain facts about the estate, such as what assets and liabilities exist. Keep in mind that it takes some time for an executor to gather that information from banks, land registries, accountants, lawyers, insurance companies, etc. It's not going to happen overnight. Don't panic if you haven't heard anything for a few weeks. Give the executor a chance to get organized.

Also keep in mind that many wills contain a phrase similar to "any beneficiary named in this will must survive me by 30 days". When a will contains that kind of clause, and every will should have a variation of it, the executor cannot even know for sure who the beneficiaries are until that amount of time has passed.

Some beneficiaries expect that a Reading of the Will is going to take place to inform them of their rights. In reality, they don't take place very often. Though I personally feel that an awful lot of estates would benefit from holding a Reading of the Will, they are not required by law and most executors do not hold one. Don't draw any negative conclusions about the lack of this procedure. If you feel that your family would benefit from having a formal Reading of the Will, you can suggest it to the executor but he is not obligated to follow your suggestion.

Another method that beneficiaries attempt to use to find out information is contacting the estate lawyer directly. This rarely works for them, for the simple reason that the estate lawyer works for the executor and not for the beneficiaries. If a beneficiary asks the estate lawyer for something - say a copy of the will to find out if he or she is a beneficiary - the lawyer cannot release that information to the beneficiary without the approval of the executor.

So, if all of these things don't get you the information you want, what are your options?

Your best option is to ask the executor directly. The executor may tell you that you are a beneficiary and that notice will come out to you by mail once information is available. Or the executor might tell you that you're not a beneficiary and that's why you didn't get a notice.

Many beneficiaries tell me that they do not believe the executor when they are told they are not beneficiaries. Others tell me that when they ask for this information, the executor becomes hostile and won't say anything at all. Therefore, asking the question and (maybe) getting an answer are not enough. This is a more difficult time for beneficiaries than most people may realize. Wanting to be a beneficiary is not just about the financial inheritance; it is just as much, if not more, about wanting to know you were remembered by the deceased person.

At that point, you should make a request in writing to the executor. It's time to start creating the paper trail you will need if the matter spirals out of control and lands in court. The written request should ask for a copy of the will or a written confirmation that you are not in fact a beneficiary after all.

You may wish for the written request to be made on your behalf by a lawyer. This has both an upside an a downside. The upside is twofold; one is that you will get information about your rights (assuming you turn out to be a residuary beneficiary and not a specific beneficiary). The other is that executors who bully beneficiaries are less likely to bully lawyers. The downside is that plenty of people who get a letter from a lawyer react badly and take it as a threat, so communication between you and the executor may become even more strained.

However, most executors won't say in writing to a lawyer that someone is not a beneficiary if the person is in fact a beneficiary. The process of writing the letter and getting a response may reveal other problems if they exist (such as missing assets)  or may simply get you the answer you require about your status as a beneficiary.

If you still cannot get a response, or if you still don't believe you're not a beneficiary, you must get a copy of the will itself and have it explained to you by a lawyer. Remember that once a will is filed for probate, you can get a copy of it from the court, and that might answer your question without the need for any further steps. However, in the cases where the will hasn't gone to probate and the executor won't cooperate, you will have to try to force the executor to give you a copy. This means a lawsuit.

You are not guaranteed success just because you go to court. Before launching into a lawsuit, get legal advice about whether it's a good idea, and talk about your chances of success. If you are, say, an adult child of the deceased - a person who might logically expect to be included in the will - you would probably have a decent chance of the court ordering the executor to give you a copy. If you are simply a friend or a more distant relative, your chances are lower. A will is a private document unless and until it is filed with the probate court and not everyone has the right to see an unprobated will just because they want to.

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