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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.



30 comments:

  1. Hi Lynne,
    Does everyone, anyone have a right to see a probated will? How does one get to know if it has been probated? Can one contact Probate court, ie Ontario?

    ReplyDelete
    Replies
    1. Anyone can do a search of the record of probated wills by contacting the superior court of the province or territory. It's called either the Supreme Court or the Court of Queen' Bench, depending on the province. In some places, you can do the search online.

      Lynne

      Delete
    2. Hi Lynne,
      My sibling was notified 3 months ago that she, myself and our brother are primary beneficiaries in our aunts will. She died in November 2015. The executor was the person who notified my sister. We haven't heard anything since, that's 3 months ago and he is not responding to our email. Are we entitled to request a copy of the will ? Any advice of where to go from here ?
      Thank you so much.

      Delete
  2. Is there a defined process (in Ontario) for notifying a minor?

    (Infant great-grandchild who is a non-residual beneficiary)

    Thanks

    ReplyDelete
  3. My birth father and mother who I grew up with got divorced when I was 14, my mother remarried and made my step father adopt me so they could get additional monies on his pension for adding me. 10 years ago my birth father passed away and I had spent several years visiting him prior to his death. My father's brother, my uncle Calvin passed away last February 2015. My oldest birth sister who I have grown up with told me last September 2015 that he had died but that my middle birth sister (whom I also grew up with) told her not to contact me as I was adopted at 15 years old out of the family. We were all born to the same mother and father, our same mother got remarried to our stepfather. My oldest sister is trying to get me to be part of the estate which is over well $1,000,000 but we are not sure how to go about this as the middle sister does not want me included, so that she can get more money for herself.

    I have contacted the birth hospital and obtained my records and the Registrar General who also sent my records to me. The Registrar Generals office, the Attorney Generals office and the Service Canada office all answered my inquiry about the estate with, as long as you are a blood relative by birth you should be included as an heir to the estate.

    Would you be able to provide any help? At this point is all about greed and not about family?

    There was no will, the estate has been probated, my uncle's farm has been sold and money is now ready for distribution to the heirs.

    ReplyDelete
    Replies
    1. I disagree with what you've been told so far. When you were adopted by your step-father, you ceased to be the daughter of your birth father for all legal purposes. Legal adoption severs the blood relative tie.

      Lynne

      Delete
  4. Hi,

    I had a great grandfather pass when I was about 13/14 years old. My father, who I was not living with and hadn't seen in years, popped by to try and get me to sign legal papers. My Mom thinks to this day that I was left money, due in part to them moving to a brand new house a few months later, and that he forged my signature to get the money. Unfortunetly, I was really young when I visited with my great grandfather, and do not have contacts with that side of the family, to get his full name and date of death. Do I need to get that first or is there a way to search if I was named in any legal documents in BC? Any help would be greatly appreciated.

    ReplyDelete
  5. My grandmother passed away in 2006 since then i have not spoken to my grandfather. He remarried and refuses any and all contact with any of my grandmother's family. I have called so many times and written several letters trying to ask my Granfather about her will, but i have never gotten a response. I'm at my wits end with this i dont even know if it is worth my time anymore. However i have been told that my grandfather is quite ill and my concern is what happens to my grandmothers will/estate when he passes away?

    ReplyDelete
  6. I has a dear friend pass away he was 82.A few months before he passed he told me to wait 3 years and than check to see.I told him that that wasnt necessary Its been about 5 years now and I feel I am being disrespectful to his memory not to check.I have moved twice and the exector would have no way to find me.I dont know any family members or who his exector is.What can I do?

    ReplyDelete
  7. Hello
    My daughters father passed away one year ago.she is his only child and has been told by her stepmother she is not named in his will. Is there anyway she can verify thst this is in fact true

    ReplyDelete
    Replies
    1. That's pretty much the whole article I posted above...

      Lynne

      Delete
  8. Hi Lynne, This is a great article, thanks for sharing! I wish I would have read it a few months ago.
    I am 1/3 beneficiaries of my grandmother's estate. She passed a year ago & my uncle is the executor and in charge of selling her house. He has not sold it yet and continues to pay house expenses out of the estate and will not respond to my offers of help and now, inquiries on the status. Where can I turn?
    Thank you.

    ReplyDelete
  9. Hi Lynne,

    Great article. Do beneficiaries receive notice via mail or email that they are a beneficiary? Is the executor supposed to include the interest in the notice as well? This is for an Ontario Estate.

    ReplyDelete
    Replies
    1. Usually executors want to give notice in a way they can prove was received by the beneficiary. That usually means by mail because they can register it if they want to and thereby get proof that they mailed it. These days, email is becoming more popular, particularly across long distances, because of speed of delivery and lower cost. As long as you receive the proper information at the proper time, the method of delivery doesn't matter, but sometimes emails go astray and nobody knows it.

      I'm not sure what you mean by including the interest. I'll make an assumption that you were left a sum of money and you want interest on it. Normally that wouldn't be included because the amount of interest will change before the funds are paid out.

      Lynne

      Delete
  10. Hi Lynne,
    My husband was named executor of his deceased mother’s estate. He is also named as beneficiary of the entire estate. His kids and myself are named as “alternate” beneficiaries in the event he had predecessed her. As he is alive and should inherit per the will and WESA, is he still required to notify the “alternate” benefiaries and alternate executor of his application to probate? We are in British Columbia. My husband has no other siblings by the way. Thank you.

    ReplyDelete
    Replies
    1. No, he is not required to notify any other beneficiaries.

      Lynne

      Delete
  11. Hi Lynne,

    Thank you for an informative article.

    My father passed over a month ago and has three adult children. My sister is executor but is suddenly being extremely shady and cold to my brother whom she is closer to than me. We have an ok relationship but the second he dies she has been extremely cold to me, not even talking to me at the funeral which makes me uncomfortable asking anything. My brother waited three weeks before bringing up the will and was greeted with hostility.

    In Ontario how long after someone has passed does an executor have to contact beneficiaries. We all had good relationships with our father so there is no reason to believe any of us would be left out. But she has gone from a good relationship with my brother to only snapping at him if he can even get ahold of her and she has shut me out completely. It's causing distrust and concern. I understand probate could take awhile but at what point do we seek legal counsel. My brother has asked and was told 9weeks after death there should be something communicated but online I can't find any solid info.

    Thanks,
    A.T.

    ReplyDelete
    Replies
    1. Yikes, only a month post-death and you guys are considering getting lawyers already.

      Your sister could just be overwhelmed. Plenty of executors find the job upsetting, difficult, and challenging. Maybe you and your brother are being too demanding. Maybe she simply doesn't have answers yet.

      Just so you know, a will drawn by a lawyer normally contains a clause that says that beneficiaries must outlive the deceased by 30 days. That means that she won't even know who the beneficiaries are for the first 30 days. Obviously she couldn't give anyone notice during that time.

      I'm not sure where the idea came from that you wait 9 weeks before hiring a lawyer. I haven't heard of that before. If you have genuine concerns, you can hire a lawyer at any time. But one month in, and only because she isn't being nice to you? That sounds like jumping the gun to me.

      Lynne

      Delete
  12. How do u find out if your a beneficiary if someone close to u passed

    ReplyDelete
    Replies
    1. The answer to this question is the original post I made. I have nothing to add to it.

      Lynne

      Delete
  13. My aunt passed away a month ago. She has 1 son. He would be the excutator of her will. She told me I'm in her will. How would you find out.
    He son and I don't talk?

    ReplyDelete
    Replies
    1. This is exactly what I covered in my post above.

      Lynne

      Delete
  14. I was told that my father had no will and I just found out that he does because I searched it in the Supreme Court for probate how do I go about seeing it as my stepmother will not speak with me and I saw that my brother and my sister both inherited things from my father there's no reason why he wouldn't have left me anything she just doesn't like me

    ReplyDelete
    Replies
    1. Go back to the Supreme Court where you saw his name recorded. Ask the clerks there for a copy. It's a public record so you're allowed to ask. There may be a small fee. I suggest that instead of just asking for the will, ask for a copy of everything on the file. That way, you might also get an inventory of the estate and other useful information.

      Lynne

      Delete
  15. Hi Lynne

    Great article thank you. My cousin died a month ago - he did not have a will - he was in a common law relationship with a lovely lady for over 25 years. Not much was in his name - a car - which she bought for him. He was married over 30 years ago and divorced- they had a child. The mother had a restraining order against him so he hadn’t seen his daughter in almost 30 years. No one knows where the mother or fully grown cold is now.
    His common law spouse doesn’t drive and just wants to get rid of the car. She was told that the car would go to the child or any grandchild. Which is fine. She just has no idea how to proceed. How to locate the child. Any thoughts or ideas would be greatly appreciated

    ReplyDelete
  16. Thank you for this great article. My Aunt passed away in May 2020 in Toronto. My 89 yr. old father is a beneficiary. He lives in NS. The original trustee of the estate has passed. My father has been told by a cousin that she has filed probate. If we do not live in the area of the Superior Court where the document should have been filed, how would we get copies of the probate information. We don't even have proof that my cousin actually applied. She was trustee on my other aunt's estate and that still isn't settled because of the cousin's inaptitude. Thank you so much, again!

    ReplyDelete
    Replies
    1. You don't have to live in the area to get copies. I don't believe that Ontario has online ordering of probate documents, so I would recommend that you phone the Ontario High Court in Toronto. You should expect to provide the name of the deceased, the approximate date of death, and the area of ONtario in which she passed. Based on that information, the clerk of the court can do a search and let you know what has been filed. You'll have to pay a small fee and you may be asked to send your search in writing. You don't need proof that she applied. If she did, the court will tell you that.

      Why not ask about the other aunt's estate as well? If these things are being left unfinished, someone else might have to step in to finish them off, and that's hard to do without the documentation.

      Lynne

      Delete
  17. I am going to hire a lawyer to do probate. Will the lawyer or the probate court notify the heirs and provide them with copies of the will?

    ReplyDelete
  18. If you're the one hiring the lawyer, then you must be the executor. As such, it is up to you to notify everyone and provide copies. The court will not notify anyone. If you ask the lawyer to do it for you, then I'm sure he or she will do so. In fact, I suspect the lawyer will ask you directly whether you want to do that yourself or have them do it. Just keep in mind that at the end of the day, it's your responsibility, so don't assume that anyone is doing anything without your direct input.

    Lynne

    ReplyDelete

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