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Monday, March 5, 2018

I believe there are assets missing from the list I received from the executor. Now what?

The flow of information from an estate is usually problematic. In the case of this reader who contacted me with a question, there is communication between the executor and the beneficiary but at this point it seems insufficient. I believe this scenario will sound familiar to a lot of readers. Here are his question and my comments:

"This Christmas my father passed away. Last week his girlfriend contacted me to inform me that I am a beneficiary of his will. I emailed her and asked for a copy. What arrived was a photocopy of notary public's stamp listing myself as a beneficiary. With a typed out listing of account amounts of cash only assets and a listing of monies needed for bills. But nothing else, not a car, home, investments.. etc. I don't feel this is correct at all and have no idea where to find facts.. any advice?"

I expect that you didn't get a list of all assets for the simple reason that they are not in your father's estate. They may exist but it's possible that he held his car and house jointly with his girlfriend. It's also possible that his investments were held in an RRSP in which he named her as his beneficiary. This is certainly how most couples set things up in order to protect each other. If these assets have a joint owner or a named beneficiary, they are not in the estate and are not covered by the will. There is a lot going on behind the scenes of most estates.

You haven't said whether your father's girlfriend lived with him as a common law spouse. In many provinces (but not all) the existence of a common law relationship creates rights for the spouse who outlives his or her partner. This might explain why an asset such as the house was not in the estate.

As you are a beneficiary, you were right to ask for a copy of the will. You are entitled to that. It sounds as though you are a residuary beneficiary, that is, a person who is receiving a share of the whole estate as opposed to receiving a specific item or dollar amount.

Your status as a residuary beneficiary entitles you to information such as the list you received of funds needed to pay bills. This was given to you because your share of the estate will be calculated as assets minus debts, divided among the beneficiaries. My impression based on what you've said so far is that the girlfriend is the executor and she is doing what she should be doing. She has notified you of your standing, sent you a copy of the will, and has provided a preliminary assessment of what the expenses will be. So far that sounds right to me.

There is nothing wrong with having questions about specific assets. As a residuary beneficiary, you are entitled to ask the executor for this information. However, rather than asking her a general question such as "This doesn't feel right. What else is there?", ask specific questions. Ask whose name was on the house and whether it was jointly owned. Ask whether the investments were in an RRSP and if so, who was the named beneficiary.

A lot of beneficiaries don't feel comfortable asking these questions because they think it makes them sound grasping or greedy. But I encourage you to remember that as the residuary beneficiaries named by your father it is both your right and your responsibility to ensure that the will is properly carried out.

On any estate, your first source of information is the executor. See how much information you can obtain there, and do your best to keep the lines of communication open. If you approach it as fact-finding and not challenging, everyone will be happier in the end.

If you cannot find what you are looking for that way, there are not many places you can look. With privacy laws being what they are, it's not easy to just reach out and grab information about someone's finances. Here are a couple of ideas:

1. Do a search at the probate court nearest where your father lived to see whether the girlfriend has filed for probate of his will. Search on your father's name and date of death. If she has filed for probate you will be able to obtain all of the estate information including an inventory of what was in the estate when your father passed away. Remember, however, that not every will needs to be probated so if you don't find anything, it is not conclusive.

2. Do a search at the land titles office or land registry in your father's province. You will need the address of the property for that. You will be looking for a transaction that identifies the ownership of the house and how it is held (e.g. joint ownership, sole ownership, etc).

You will not be able to obtain information from the banks, insurance companies, or Canada Revenue Agency. They simply will not discuss your father's private information with anyone but the executor.

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