Can't sell the deceased's house because the other joint owner is also deceased - now what?

This reader wrote to me after what appears to be years of frustration with trying to deal with two entwined estates. At the root of the issue is the fact that a joint owner of a house did not take steps to update the title after the other joint owner died. Toss in a lost will and you have an interesting situation. Neither a lost will nor a failure to deal with a land title is at all uncommon, so I thought I'd share this reader's dilemma here.

Here is the question (or should I call it a cry of desperation?):

"I hope beyond hope you can help me. Grandfather died in 1988. Grandmother was co-owner of the house. Aunt was named executrix of Grandfather's will. Aunt lost the original will. We have copies. The will wasn't probated. Grandmother died in 2001. Her estate was probated and dealt with, except for house (paid off) which we cannot sell due to joint ownership. Not one lawyer will touch this. Not sure where to start. HELP!"

 

This isn't really that complicated. If no lawyer will touch it, it's because you're asking the wrong lawyers. Find someone who specializes in wills and estates by calling the Canadian Bar Association (not the Law Society) in your province. You can also google wills and estates lawyers, then read the profiles of lawyers in your area to determine whether they have the necessary experience.

 

In order to proceed with the sale of the house, first your grandfather's name must come off the title. To do that, your aunt needs to probate your grandfather's will so that his executor will have the legal ability to sign documents on his behalf. If the original has been lost, she needs to try to probate a copy of it. That isn't done often, but can be done in certain circumstances with the permission of the court.  It's more complicated than probating an original, but not impossible.

 

If your aunt is reluctant to act, you might remind her that she may be personally responsible (i.e. not covered by the estate but out of her own pocket) for any loss that occurs to the house, loss of rent since 2001, any capital gains tax that accrues while the house is waiting to be sold, and any court costs/lawyer's fees if you have to force her to take steps. Perhaps she would find that information to be motivational.

 

It wouldn't have been necessary for your grandfather's will to be probated if your grandmother had taken your grandfather's name off the title herself after he died. She, like any surviving joint tenant, could have simply gone to the land titles office with a death certificate and had the title changed over to her name alone. But since she didn't, and may have had no idea that she could even do that, now probate is needed so that someone has legal authority to deal with the title.

 

Once your aunt obtains probate, she will have the legal authority to take your grandfather's name off the title. After that, the executor of your grandmother's estate can arrange to sell the property. The proceeds will go into the grandmother's estate, not the grandfather's estate.

 

This situation isn't really all that unusual, in the sense that surviving joint tenants often don't realize that they have to do anything with the title to their home. They understand that when one joint tenant dies, the other automatically owns the house. The word "automatically" is misleading, as it implies that no action needs to be taken. More accurately, the surviving joint tenant has the right of ownership, but must make sure that the title record is brought up to date at the land titles office.

 

In your case, the loss of the original will does complicate things somewhat, but it's not impossible to deal with. The key for you is going to be finding someone with the required depth of knowledge in this area of law.

Storing your documents in a safe place

Last week I met with some clients to review their existing wills. I met them in their bank branch because they planned to take the documents out of the safe deposit box at the branch, and it would be convenient for all of us to then meet right there. However, when they opened the box they discovered their documents weren't in it. I was concerned, but they assured me that really the documents could be anywhere, they really couldn't remember, and they had only guessed that maybe they'd stored them in the safe deposit box.

I wish this was an unusual situation. However, plenty of clients over the years have told me that they really can't remember where their original wills were being kept. This is troublesome, since it seems to me that if the client himself can't locate the will, there isn't much hope that the executor will ever find it.

The bank safe deposit box is a good place to store important legal documents such as your original wills. Perhaps these clients intended to store theirs there but never got around to it.

Other good storage places are the vault at your lawyer's office (if they offer that service - not all wills lawyers do), the vault at your trust company or a locked safe in your own home.

Less appropriate (but unfortunately still popular) storage places are: an unlocked cabinet in your home, your sock drawer, in the trunk of your car, under the mattress or in the freezer. When someone hides their will in a safe place that nobody but he can find, he forgets that when the will is needed, he's the only one who won't be around to say where the document can be found.

Wherever you choose to store your will, you should choose a place that keeps your document safe from fire, water, theft or loss. It's also important to protect it from nosy people who have no business reading it. Balance the need for safe-keeping against the need for the original document to be found once you have passed away.

At the time your will is made, there will be only one original document. It might be a good idea to photocopy the will and write on the copy something that indicates the location of the original. Then years later when you take out your copy to refresh yourself on what's in your will, you will also remind yourself of where it's being stored.

Should I give my executor a copy of my Will?

Although there is never one answer that is right for everyone all the time, there is one thing that is always a bad idea. That is, not letting your executor know that he or she is your executor.

You have some options. You could choose to give your executor a copy of it. On the other hand, you could choose not to give your executor a copy but simply to let your executor know that he or she has been appointed under your Will.

What are your concerns in letting your executor have a copy of the Will? Most clients cite privacy as the main issue. They say they don't really want their executors to know personal, financial and business information until it's necessary for them to have it (i.e. when the client passes away). Perhaps this could be addressed by keeping financial papers only with the original Will, which won't be handled by the executor until after the death of the testator.

Another consideration for some executors arises when one of their children is the executor. They don't necessarily want any of their children to know their plans, because they feel that might cause a problem should they change their plans later. They feel they might have given rise to certain expectations that could end up being disappointed.

Many married couples name each other as first choice for executor, with one or more of the children being appointed as an alternate executor. They often tell the child who is the alternate executor that he or she has been appointed, and that the other parent has a copy of the Will.

Whether or not you give your executor a copy of the Will, you should retain control of the original and let your executor know where it is kept. It is essential that your executor knows where to get the original as it is needed for the administration of your estate. If your executor has to search for it, this will lead to unneccessary delays, and of course the possibility that your executor won't be able to find it. Usually Wills are kept in the bank safety deposit box, the lawyer's office or in a safe at home.

If you've ever prepared an inventory of your assets and debts, perhaps as part of your Will-planning with your lawyer, or w,perhaps ith your financial advisor or pre-paid funeral services, consider keeping that inventory with your Will. This is a great way to help your executor administer your estate, because your executor will know certain important information, such as where you bank and where you hold your insurance policies.

How do I know if the Will I've found is valid?

If you are the executor for your parent or another person who has passed away, you have probably searched the house for the person's Will. This is essential, as the Will describes for you what you will have to do with the estate.

What if you've found a Will tucked away among the deceased's household papers but you are not sure whether it's a valid Will or not? How do you know whether this is the Will that has to be probated? The points below will help you decide, but please remember that the final decision about whether a Will is valid or not is up to a Justice of the Queen's Bench of Alberta.

Here are some things to look for:

Is the Will written down? If it is videotaped, or if it is merely a series of items with names written on the backs of them, these are not valid.

Does the Will appear to be an original, as opposed to a photocopy? You can usually tell by the colour of the ink used in the signatures. If everything is in black ink, look for slight indentations of the page where it is signed.

Are all of the pages there? If the pages aren't numbered, try reading the last part of each page to see if it leads into the beginning of the next page.

Is the Will dated? Most are dated on the last page, right above the signature. A few are dated on the top of the first page, in the first or second line of the Will. If you have found more than one possible Will, the most recent one is the valid one, but don't destroy the old one. Note that Wills don't expire, no matter how old they get.

Is the Will signed? Normally the Will is signed at the end by the testator (the person whose Will it is), and initialled on each page by the testator. You might find that the names on the signature lines are not really signatures, but are printed and possibly in quotation marks. If so, you have a "trued up" copy of a Will, and the chances are very good that the copy was trued up by a lawyer's office who will have the original Will.

Is the Will witnessed? On the signature page (usually the last page), in addition to the testator's signature, you should see the signatures of two witnesses. If the Will is a handwritten Will (known as a holograph Will) it does not need any witnesses.

You might find that the Will was witnessed by someone who should not have witnessed, such as a beneficiary under the Will. For your purposes in deciding whether the Will is valid, don't worry about that right now. A mistake in witnessing doesn't necessarily mean the whole Will is invalid. Your best bet is to consult an estates lawyer who will help you work with any problems the Will might present.

Has the testator crossed things out of the Will or added things in handwriting? This is a tough one. It is not likely that the things added in handwriting will be considered valid. However, it could well be that the Will itself is valid, even if the additions and deletions are not.

If the Will is in an envelope that at one time was sealed and now it is opened, that does not invalidate the Will in any way.

You may already know that to take a Will to probate, there has to be an affidavit attached that is signed by one of the witnesses. If that affiavit is not attached, that does not invalidate the Will. The Rules of Court allow for that affidavit to be attached at any time after the Will is made, including after the testator has passed away.

If you've found a Will that you have any question about, you should take that Will to an experienced lawyer and ask for an opinion about whether it's valid. An executor has an obligation to present whatever valid Will is found.

Where do you look for someone's Will?

Fairly often, we hear from individuals who are looking for the Will of someone who has passed away. Sometimes they aren't really sure whether the person ever made a Will or not, and in other cases they are positive that there is a Will but they just can't find it. Sometimes they even have a photocopy of a signed Will and can't find the original. In almost every case, the person doing the searching believes that he or she is the executor of the deceased person's estate.

The original Will is required in order to apply to the Court for a Grant of Probate. It is possible that a photocopy can be probated, in certain circumstances, and only if you can satisfy the Court that you really did look in every reasonable place for the original Will. In fact, if you want to probate a photocopy, you will have to swear under oath to the fact that you made an extensive search.

In Alberta we do not have a public or government registry or depository for Wills, though some other provinces do have that.

The following are some ideas about where to look for someone's Will if they are deceased. Keep in mind that if you are not the executor named in the Will, you have no right to have or even see the Will. If it turns out that the executor named is already deceased, others may then become entitled to have the Will for the purpose of applying for probate or administration.

- Check any safe deposit box owned by the deceased;

- Check all filing cabinets and safes in the deceased's home;

- Check filing cabinets at the deceased's office or shop (this will of course require the cooperation of the deceased's employer, for privacy reasons);

- Ask the manager of the deceased's bank to check with the trust branch of the bank. Not all banks have a trust branch, but some of Canada's top banks do. The trust branch keeps a fireproof vault of original Wills belonging to customers who have requested that service;

- Call any lawyer or law firm that you think the deceased dealt with, even if it appears that his or her dealings were for unrelated matters like a house purchase or divorce;

- If you have a copy of the Will but not the original, look at the signatures on the last page to see who the witnesses were. Most often, one of the witnesses is a lawyer. If so, you can find that lawyer or his or her firm and call there;

- If the lawyer listed on a Will is retired, call the Law Society for your province or territory. You may be given the lawyer's phone number. Alternatively, you may be advised of which lawyer or firm took on that lawyer's files when he or she retired;

- Call any accountant that you believe the deceased might have worked with;

- Call the deceased's ex-husbands or ex-wives to get the name of any lawyer that might have done a Will for them in the past;

- Call the Office of the Public Trustee;

- If you think the Will was very old, check with the Clerk of the Court of Queen's Bench. Though there is no current depository, there was one at one time and there is always an off chance that the Will you're looking for is there;

- Advertise in publications that lawyers read. Law firms that store original Wills check these publications on a regular basis to make sure that if any of the Wills in their vault belong to someone who has passed away, the executor is notified.

Good luck in your search.