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Monday, April 24, 2017

Babe Ruth's will is on the auction block


I heard once, not long ago, that celebrity cemetery tourism is a real thing now. Apparently, so is buying the wills of celebrities. I became aware of this when I saw that the original 1933 will of Babe Ruth is to be auctioned off. Click here to see more details about the will and the auction. Last time this will was sold (in 2015), it fetched $100,266.

I suppose that the attraction of a will like this is that it reveals something of the personal life of the celebrity. Personally, I find wills of famous writers to be fascinating, but I thought that was just me getting carried away after 30 years in the wills industry. Apparently a career writing wills is not necessary for celebrity will-gawking!

Certainly there is a full signature that should make an autograph-seeker happy, but the real value must be the fact that the document reflects the wishes and thoughts of Babe Ruth. We like to know that celebrities are people just like ourselves, and a will would certainly do that. Even celebrities die and must pass their estates on to their families.As with all of our wills, this document probably states who was important in Babe Ruth's life. By making a will, he was ensuring that his plans for his loved ones were carried out.

The image used here accompanied the article linked above on www.beckett.com. It did not attribute the image to a photographer.

Friday, April 21, 2017

Latest episode of the Law Show available for listening online

The latest episode of The Law Show is available for listening now by clicking here. This is the third episode, in which we chatted with our special guest, Greg Youden from CIBC. We talked about how we non-millionaire, ordinary folks might want to use a trust company in our estate planning.

Next week we'll be spending the entire program talking about joint property and how it is used and misused in estate planning, so don't miss it!

Thursday, April 20, 2017

A smile for the weekend


It's almost the weekend. Let's have a little smile!

The executor has used estate funds for personal use. What can a beneficiary do?

If you were a beneficiary of an estate and you found out that the executor was skimming from the estate, would you know what to do? Would you know what legal solutions were available? A reader recently asked me what to do in that situation. His question and my response are below:

"My brother recently became executor for our mother's estate. He has asked all beneficiaries to sign a full release for an interim disbursements. He was very upset when I refused to sign a full release and that got me wondering what was going on. After much debate, I finally got him to send us documentation on the estate which showed a very different amount in the estate bank than what he had sent us originally. He then confessed to "borrowing" from the estate for personal use. Do I have any recourse to have him removed as executor? The will has been probated and all was going OK until I found out about the borrowing. Is there anything I can do about reducing his executor fee? Is he in breach of fiduciary duty? Is he in contempt of probate court? Did he break the law?"

There are some options open to you, all of which are based on the fact that as executor, he is not allowed to "borrow" from the estate. Yes, he is in breach of his fiduciary duty.

One solution is for his executor fee to be reduced by the amount that he borrowed. He might agree to this voluntarily if it avoids a lawsuit, and if the dollar amounts are suitable. If he does not agree, you can ask the court to order it.

Reducing his fee would mean that he would remain as the executor. If you believe that is not the best thing for the estate, or if the amount he took is more than his fee would cover, you could ask the court to remove him as executor. As a general rule, courts do not like to remove executors because it means going against a choice made by the testator, who had her reasons for appointing him. It's your mother's will and she had the right to choose who she wanted. However, it certainly can be done with the right evidence of misuse of estate funds.

You would have to provide the court with the consent of another person who is willing to take on the job (and there are some rules about who that can be), because the court is not going to remove an executor without a replacement. The process of removing him would also involve him passing his full accounts in front of the judge.

Your brother is not in contempt of probate court. However, as mentioned, he has breached his duty to the estate and to the beneficiaries and that is the basis of any lawsuit that would ensue. Because you are a beneficiary, you are directly affected by his actions and therefore you are a person who has legal standing to bring an application to the court. In reality. most of these matters don't make it all the way to court because things get settled along the way, but each case is unique.

When you ask whether he has broken the law, you are really asking whether criminal charges can be laid against him. In theory, this is possible. However, in real life the legal waters are very muddied and involve civil law more than criminal law, so the police stay out of it. This is because the grant of probate allows your brother to legally access the money. It allows him quite a bit of leeway in how he uses it. If you want to bring charges because he has misused the funds, this puts the police in the position of having to interpret a civil document and its usage in the context of probate law, which really can only be done by a judge. Criminal charges are rarely laid against executors except in very extreme cases and usually it's after the matter has been through civil court so that the issues have been dealt with. In other words, it could happen but at this point it's premature.

I suggest that if there is any way the matter can be settled without a lawsuit, you should try to take that route. Perhaps your brother could find a way to replace the funds. Lawsuits are expensive and time-consuming, and will likely destroy your brother's relationship with you and the other beneficiaries.




Tuesday, April 18, 2017

Estate planning mistakes can so easily be prevented just by talking

A recent article from www.advocatedaily.com lists the top ten estate-planning mistakes according to Allison Oxtoby, a lawyer from British Columbia. Click here to see the list.

Some of the language used in the article is specific to BC, but the concepts apply right across the country. For example, the article mentions applying to be committee for an incapacitated adult, whereas other parts of the country call that adult guardianship.

Ms. Oxtoby and I apparently think alike, because I agree with each and every one of the ten items on her list.

Many of the mistakes people make during their estate planning (or lack of it) could be fixed or prevented simply by sitting down and having a frank discussion with an estate planning lawyer. I had a conversation with a client this morning to review her existing will, which she made about 15 years ago. As it turns out, what is in her will is not at all what she thought was in it. For example, the will leaves her home and all of its contents to two of her three children. When I asked why the third child was not to receive anything from the house, she was surprised. She thought she was leaving the house itself, and didn't realize the effect of adding the words "and contents".

Talk out your plans and ideas with someone who has experience in estates. This will prevent so many errors that tear families apart.

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