Friday, July 23, 2010

Top Five Mistakes Made by Executors


Being an executor isn't easy. There's plenty of paperwork to be done, lots of interaction with government agencies, registries and lawyers. There are always beneficiaries putting on pressure to do things more quickly. And if all of that weren't tough enough, an executor risks personal liability for any mistakes he or she makes.

It's not surprising that executors make mistakes. In the interest of informing present and future executors, here is a look at the top five mistakes executors make:

1. Ignoring inconvenient or unpopular parts of the Will

Executors frequently feel that they have a better, or "more fair" idea of how an estate should be distributed than is directed by the Will. However, it's not their choice. Their job is to distribute the estate according to the Will, not to re-write it. An executor might be less tempted to change the distribution if he or she kept in mind that for every person who likes the new distribution, there is at least one person who is outraged by it. If the executor fails to follow the distribution under the Will, he or she may be responsible for paying the disappointed beneficiary out of his or her own personal funds.

Executors ignore other parts of the Will too. For example, an executor might sell an asset and give the beneficiary the proceeds, even though the Will directed that the asset be given in specie. The executor might give trust funds to children at a younger age than that directed in the Will. He or she might forgive loans that were to be collected. None of these things are within the authority of an executor and each exposes the executor to potential liability.

2. Keeping secrets and failing to communicate

Executors are often secretive to the point of being furtive. Nothing is going to fuel speculation and suspicion on the part of beneficiaries more than being kept in the dark. An executor must respond to reasonable enquiries from the residuary beneficiaries of an estate. They are entitled to it, and responsible for policing the actions of the executor. They are entitled to see the Will and all of the documentation filed with the court. Believe me, if beneficiaries can't get the informaiton they're entitled to, they will suspect the worst. Perhaps executors don't realize that as soon as the frustrated beneficiary hangs up the phone, his or her next call is to a lawyer.

Time and time again I hear stories of family members who are presented with complicated, mysterious documents by an executor and being told to sign them, without being given any information about what's going on. Any executor who treats important legal issues this way should expect pushback from the beneficiaries. This is a textbook example of how to start an estate dispute.

The failure to communicate even reaches to co-executors. Sometimes a person will act for weeks or months as an executor and not reveal that there is a co-executor appointed until he or she is forced to do so because a financial institution refuses to go further without both signatures.

3. Treating estate money as their own

Perhaps this is the reason for the secrecy mentioned above, but many executors either don't know or ignore the limits of their role. Executors have been known to pay off their own debts, make loans to family members and buy into business ventures, all with estate funds. None of this is lawful, and executors may be forced to repay those funds out of their own money.

Even executors who are honest make mistakes with estate money. For example, many executors don't see a problem with using estate funds to fly in family members from all over the world to attend the funeral, and using estate funds to supply those family members with hotels, transportation, meals and sometimes even clothing to wear to the funeral. These are not estate expenses. The executor could end up paying for all of that himself or herself.

4. Failing to deal with debts and taxes before paying beneficiaries

I suppose it's a natural human reaction to ignore unpleasant things, but this can't apply to executors who must prepare tax returns. By law, debts of an estate, including tax liability, must be paid before beneficiaries receive their shares. It isn't easy to resist the pressure from those who want their money now, but an executor who pays beneficiaries without having cleared all debts and liabilities may be personally responsible for paying those debts.

5. Trying to do everything cheaply

It's certainly not a bad idea to keep estate administration costs low, but unfortunately the way many executors go about that actually ends up costing the estate more money. "Keeping costs low" seems to translate into forgoing professional help in many cases. For example, they try to do tax returns without the help of an accountant, which means they miss eligible deductions and elections. They also miss filing deadlines, and so incur interest. They try to sell real estate without a realtor and settle legal disputes without a lawyer. They sell assets without appraisals and invest money with no guidance. Very few people can do all of these things well, particularly at the same time as keeping their full-time job and family going.

The best way to avoid these five main errors is to stick to the Will, take your time and ask for professional help when you need it.

190 comments:

  1. You can add...not going to professionals for advice - but listening to the neighbour or relative, without knowing what their situation was vis a vis yours and understanding the difference.

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  2. Patrice, what an excellent point. Legal advice is always very fact-specific, meaning that even a tiny difference in facts can mean the person should take different steps. Nobody else's situation is ever exactly like anyone else's. I always think that using second-hand legal advice is like taking someone else's prescription medicine - it usually does more harm than good.

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    1. All very well to say 'get professionals to do the work', but what happens when there is no money to pay them?
      My brother took my mother for every dime she had and badgered her into going thousands of dollars into debt besides, so when I say there isn't three or four thousand for a lawyer and another three or four thousand for a real estate agent, I'm not kidding.
      I got landed with being her executor, and I've been cleaning up the mess left after everyone took what they wanted and my brother finally got his stuff out of here (like washing nicotine off the walls) and trying to get the house ready for sale. I'm doing it piece by piece since my SO and I are the ones paying for the materials: paint, tiles, new stove hood, curtains. What my time would run into if I charged per hour I don't even want to think.

      What money there was - her last SC payment and life insurance - is being used to pay the hydro, utilities, taxes, insurance, etc.
      Oh, it would be great if I could just call in professionals, but sometimes it's just not an option. What I need is a guide for someone who has no choice but to do it themselves.

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    2. People like your brother cause untold heartache for other people.

      You're right; it's a hell of a lot harder to take care of an estate when there is no money to operate with. It's possible to obtain probate on your own, so check for DIY kits (some links on my blog to the ones I know of). Make sure you apply for the CPP death benefit. It isn't a lot of money but it will help.

      Also, when the house does sell, make sure you reimburse yourself for every penny of your expenses. Not just for the renos, but also for your time and any expenses such as travel, parking etc. Take an executor's fee too.

      I assume that the estate is to be divided between you and your brother. If so, you are entitled to offset any sums of money he received while your mother is alive. Now, that wouldn't be easy, given that you'd have to figure out how much it was when there is likely no documentation, and he'd likely put up a fight. But you might feel better about the whole thing if you at least got your money back.

      Hang in there.
      Lynne

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  3. On point 2, why is the executor only required to communicate with residuary beneficiaries and not specified beneficiaries?

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  4. Hi Mike,
    A specific beneficiary has been given a certain gift, say $500. This person is going to get the same $500 whether the estate is worth $1,000 or $10,000,000. Therefore there is no need for all of the deceased's private information - both personal and financial - to be divulged. On the other hand, a residuary beneficiary's gift is, by definition, a share of "the rest" of the estate. They won't know what they are supposed to receive unless they know how much "the rest" is. For example, if you were to receive 50% of an estate, you need to know whether the estate is worth $1,000 or $10,000,000 so you can figure out what your share is worth. How else will you know whether the deceased's instructions were properly carried out? Every dollar that an executor spends on expenses or loses by being negligent is a dollar that is taken out of the residuary beneficiary's pocket, but not from the specific beneficiary's pocket.

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  5. My wife's mother died intestate six months ago, my wife's only sister is the administrator. The estate consists of two houses, one of which is occupied by the administrator, who has been living there since shortly before her mother's death. Neither house has yet been put up for sale. The administrator has been repeatedly verbally abusive towards my wife. My wife has written a letter to the estate's lawyer and advised that she wants me to act in her stead in this matter, she can't take the abusive language and drama anymore. We have been given no plan or schedule, no appraisal or balance of accounts. I can guess the value of the assets but I have little idea of the estate debt. I have approached the administrator, who says that she is apalled that I would aske her to pay rent to the estate, that she can tie up these properties for ten years if she wants, and that my questions about the status of the estate constitute harassment, and that she will get a court order to stop me from interfering with her duties. My wife and I have always been polite and proper in our dealings with this matter. What should I do?

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    1. I had to reply to this. Do you and your wife already have a house. Don't you think if your Wife's Mother wanted you both to have the house her other daughter was living in with her so badly she would have left in only your names. Why don't you both just leave the girl alone and let her live in it. This baffles me when greed take over. You have a house, this girl does not... let her be and live there for heavens sake. You sound like the idiot I have for a sister....

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    2. Now I must reply everything should be spilt fairly. Too often the victim child still gets bailed out as they have all their life with your mentality. Are u that person? Just because someone has their own house and another doesn't shouldn't be reason to forfeitthat part of their inheritance. IIt's time the other person grrew up and took responsibility for themselves and stop expecting handouts!

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    3. Here is my take on this situation..The individual who initially posted the question was not implying that the sister (executor) move out and sell the house she is living in, he was simply asking how to get information about the funds owed and the amount the two sisters were to split.. Even if the one continued to live in the one house the entire amount of assests (both houses, accounts, debts) should be tallied and divided between all beneficiaries. Before you go bashing the individual posing the question, perhaps you should read it over a few times.

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    4. Your story is very similar to ours, my husband and I had been taking care of his father for years, when he became sick, the estranged sister came in on the scene, picked a fight with her brother to the point where the father started to cry and get angry, we left to allow peace for the elderly gentleman. The sister took over the care and wrote us a letter stating that the police would be called if we went to visit. Months later the father died and to our surprise, the original will was changed and the son left out. The father was 89-90 at them time. We are attempting to research medical records and backing as we had a clear idea of what was what. That may provide evidence of dispersing accounts/selling property before the father was dead and such.

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  6. A question on dual executors.

    My dad died 5 1/2 years ago and we are still dealing with the estate. Basically a few years before my dad died he had a heart attack and the woman he lived with had him sign a mirror will in the hospital.

    A year or so later they had a common law separation the estate divided. A year later he died but had not changed his will nor had she (she since has). She was the sole executor and beneficiary but through the separation agreement she was removed from her duties.

    From there the will dropped down to co-executors that she had picked - her daughter (whom my father loathed) and my sister. control of the estate, In total there are now the 4 beneficiaries of the mirror will - the 4 kids all in our 30's - my sister, myself and this women’s daughter and son.


    Both my sister and I live om Toronto 500 km from my father’s home but we were trying to sell his house of which the other executor, who lives in the next town, decided to move in and throw out the tenant living there (who was paying rent to cover the cost of mortgage and insurrance). She lived there for 13 months and now 5 years later with everything finally wrapped up somewhat, (as she thwarted everything along the way and did not respond for months on end) she is trying to claim $3600 for living expenses in the house (gas money to her work in the next town).


    We sent numerous letter saying we did not want her the house, personally talked to her several times asking her to leave but she refused. The mortgage came out of the estate while she moved in and lived rent free with her boyfriend and 2 kids - basically like a squatter we could not get her to co-operate and leave the home instead she invited us to stay if we wanted (I believe some advice given to her by one of the several lawyers she retained and fired). She would not approve any real estate agent we wanted for almost a year and then when she did the house was sold in less then a couple months.


    We have conceded on so many continuous issues over the years, swallowed our pride just to move things along, even if my dad would be rolling in his grave.

    My sister and I want this behind us so we can move on but this business of claiming gas money to travel to and from work from his home is ridiculous after rent free living and the other co-executors disproval

    We really don't want to bend on this issue as well but she refuses to let it go and continues to hold up the closing of the estate as she has no other interest except getting what she can? We know only half the monies she wants actually comes out of our pocket (as she and her brother our beneficiaries) but it's principle and another strong arm tactic to ultimately get her way.

    What are her rights in this matter and our rights as co-executor and beneficiaries?

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    1. I was told by a judge that I as a beneficiary (50%) that I had no rights. Not even to inspect the estate and she could have me arrested if I tried.

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  7. My wife, as beneficiary, signed the request that letters of administration be assigned by the court, and at that time waived the requirement that the administrator should post a bond.
    The administrator will not provide accounting, nor communicate with my wife or me. Can my wife reconsider and now ask that the court revisit the provision of a bond, or is it too late?

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  8. Deb is asking..

    In later years of his life my grandfather had many excuses as to why he could not visit or have visitors to his home, he was sick, going ona trip, etc. I as his only living reltive and his grandaughter was assigned as executor and beneficery 16 years ago upon my grams dealth.
    Last week the lawyer notified me, Grandpa passed away 10 days ago. Suddenly I have a woman claiming to be executor, she has already listed and reduced the sale price of his home, I wasn't even informed he was sick or dying. They claim they could not get a hold of me but my contact information has not changed in 43 years. The real estate company will give me no information, actually they were aggressive and secretive.
    Has anyone had any experience they could share. Is there not time frames to contact family? can someone have a second will done without the family being notified? I don't even know where his body is to make appropriate arrangements to put him with my grama. The stress is overwhelming and I'm anticipating a very big problem on Monday. I don't have any idea who this woman is who claims to be his executor but the realtor stated she (the woman) was "planning to be very fair with me". The statement alone has lead my mind to think all kinds of thoughts.

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  9. Just the fact that the estate has taken over 5 years so far tells me how bad this has really been for you. As often happens in estates, the person who pushes the hardest and screams the loudest seems to win a lot of battles that wouldn't be won on the merits.

    I don't understand the part about the separation agreement removing her from her duties. Normally that kind of agreement wouldn't have any effect on your father's choice of executors. But then, I haven't seen the agreement so I couldn't say for sure.

    Have you been taking care of all of this without a lawyer? I think this kind of dispute is too important for you to rely on a few paragraphs from someone (me) online. I don't have all the facts and can't review your documents. I think you need to sit down with someone and talk out the details. I get the feeling that so far there hasn't really been anyone involved in the estate (including the lawyers) who knows how to keep it on track.

    Yes, your father, bless him, may well roll over in his grave. He obviously wanted to leave things in order for everyone by making a Will. As happens over and over again, his estate was shanghai'd by a choice of executor that I'm sure he regrets. I hope that other readers seeing your story learn something from it.

    Lynne

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  10. Lynne, can an executor (also a beneficary) of an estate claim a gift to another beneficairy was a loan that occurred 15 years ago. The will makes no notation of a loan and that everything is to be divided equally. The lawyer however has noted that the deceased told them that it was a loan(that was 5 years ago when the deceased changed the executor).

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  11. In answering this question, I'm assuming that the beneficiaries are the deceased's children. The general rule is that money given to the children ahead of time is considered to be an advance on their inheritance. In other words, a loan that if not paid back, will be deducted from their share of the estate. The person claiming it is a gift will have to prove that. It's interesting - and annoying - that the lawyer apparently knew it was a loan but didn't put that in the Will, but sometimes our clients just don't want certain things included. These are general rules of course, since I haven't seen the Will or talked to anyone about it, so tread carefully.

    Lynne

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  12. I'm concerned that you're relying on me for legal advice on a specific problem, which I'm not in a position to give you. I can give information about how things usually work, but the issues that you're talking about are complicated and important and you should sit down with someone and talk things out. There are specific issues that need more than a superficial answer. For example, why are you assuming that you're the only one of the kids whose "help" will be treated as a loan? You need to bring a copy of the will and everything you know about all of the advances to a lawyer who can ask you specific questions to get the whole story, and give you some suggestions about your options. What you can get from a blog, whether it's mine or someone else's, is just too generic for an important issue. Best of luck,
    Lynne

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  13. I have a question..

    Can an executor, who is also one of two named beneficiaries and the holder of the estate as trustee for the elderly spouse of the deceased, invest his own money into an estate property in order to make it a money generating property for the surviving spouse? (ie turn the home into an apartment dwelling)Can he set up a legal contract with the other beneficiary of the estate without the surviving spouse's permission? Is this legal?

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  14. Can Revenue Canada changed its mind
    months after the "Final Distribution/
    Clearance Certificate" has been issued?
    Second once the distribution is done,accepted by all in writing, can I as an executor burn all old income tax files of the deceased?and all documents,wills etc Quebec resident

    Peter

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  15. An executor should never mingle his or her own money with that of the estate. When money is blended, problems may arise, such as to whom capital gain is allocated. My impression of your question is that the various roles you are playing are being blended and more or less ignored. Obviously I haven't seen the Will and don't have all the facts, but this scenario would seem to be riddled with conflicts of interest.

    Lynne

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  16. Lynne do you have an email address I can send a question to? Its rather lengthy.

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  17. You can reach me by email at estatelawcanada@gmail.com.

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  18. hi there my father passed away 4 years ago with no will. my step brother appointed himself executor at the time we were fine with this. he got us to sign the releases but one brother refused to sign, what happens in this situation? is the money in a interest bearing account and how do i try to recieve it in this situation? my step brother has made no contact with anyone else and we are not close at all. before signing these forms we found out that 1 year before our father passed , my step brother had him put the house in his name and that is what caused the break down between us. we all feel cheated but there is still quite a bit of money that i could sure use but dont know how to go about getting it with my brother not signing the papers?

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  19. Hi,
    I don't know for sure whether your step-brother has put the money in an interest-bearing account, but he should have done that. If I were you, I'd get going on this before any more time passes, because once the money is gone, it's gone. As a beneficiary, you do have the right to push for a final distribution of the estate, especially four years after your father's passing.

    It would be helpful for you to know why your brother wouldn't sign the release. If it is solely because of the house transfer (and I'm not saying that's a small issue) it may be possible to separate that issue from what happened after your father's death so that the post-death estate can be distributed.

    I'm wondering whether your step-brother was acting under a Power of Attorney when your father transferred the property to him? If so, that certainly opens up a whole new issue.

    I know that all of you aren't speaking at the moment, but if you think that communication isn't impossible, you might consider having a mediation meeting. You would have a neutral party (usually a lawyer or someone from a family succession planning group)who would lead a discussion between your step-brother and all of the beneficiaries. The whole point of it is for everyone to tell their side and to see if it's possible to settle things. This is much cheaper than everyone hiring a lawyer and duking it out in court. It's quicker too, and easier on the nerves. You may be able to get people to pool their money to pay the mediator.

    If that doesn't work, you might just end up hiring a lawyer to push for a distribution.

    Lynne

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  20. Lynne,

    My father passed away recently and I am one of three executors in his will. However, a few weeks prior to his death, I became the attorney (is this now called trustee?)when my father's enduring power of attorney was put into effect due to mental incapacity. I realize the EPOA ceases to exist upon death, however, I am wondering if I have "special" responsibilities because of the "attorney role"?

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  21. Hi,
    I'm sorry to hear about your dad.

    The three executors have equal responsibility and decision-making duties, but you are right that you are in a slightly different situation because you acted as attorney. An attorney's responsibility to the executors is to account for what he did while he was the attorney. So in your case, you must show your fellow executors the bank statements etc that show what you did. There doesn't necessarily have to be a formal set of financial reporting documents if you only acted for a few weeks and basically kept things running as your dad had run them. If you made any purchases with your dad's money or changed any banking arrangements, you have to show this to the other executors. Other than the reporting requirement, there really isn't any other difference between the roles of the three executors.

    As for the question about the wording - a trustee is anyone who is looking after money or property for someone else, so both executors and attorneys are types of trustees. Attorneys are sort of a blend of agents and trustees, but because they look after someone elses's money when there is incapacity, they are considered trustees. However, you're correct to refer to yourself (before your dad's passing) as an attorney because that specifically identifies you as someone acting under a Power of Attorney, as opposed to someone acting under a will or trust deed.

    It sounds like you're on top of things and I hope it goes as smoothly as possible.

    Lynne

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  22. I have a complicated situation. My father died in 1963. It came to light last year that he was the owner of gold shares that he apparently purchased around the time of his death. My lawyer in Vancouver is preparing "letters of administration" for me as my father's sole heir. The shares are worth approx.$90.000 today as opposed to $3.690 in 1983 (a value at the date of his death is unobtainable). Would the capital gains be owable by his Estate ($3.690) or the current value ($90.000)? I am also a non-resident having lived in Spain since 1972. I do collect a small pension from the Canadian government for the 12 years I worked in Canada before leaving.

    I would really appreciate some advice in this matter.

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  23. Hi Lynne,
    I am co-executor with my brother for my Mom's estate who passed away last July. I signed a document last fall stating that only one signature, rather than both of us would be required to do executor business as I live in Toronto and both my brother and Mother live(d) in Montreal.
    Since then my brother has contacted me only twice. The first time was to advise me he had hired his own company to repair a boathouse my Mother and her Brother (still alive) shared on a small piece of land. He advised me that my uncle didn't want to pay for repair to a boathouse used only by my brother to store his and his friends boats and that I shouldn't worry about it 'Mom paid". Problem is Mom had been dead for 4 months at that time, made no provisions in her will to repair a boathouse on a piece of land she never went to, and I as co-executor had not been consulted.
    My brother has also maxed out a credit card in my Mothers name of which I am the secondary card holder. He has depleted the estate account and recently advised me we would have to liquidate her financial investments to pay off debts, beneficiaries and estate taxes that he advises me will be paid late and we are to expect a heavy fine. My Mother died debt free.
    It turns out that the land inherited and shared by my Mother and Uncle, was to go in entirety to the surviving sibling, my Uncle and is not part of what my brother assumed was part of my Mom's estate. Had he waited until the Notary had completed her research into the property deeds etc before spending the estate account on repairing the boathouse he stores his boat in, he may have realized this, but didn't.
    I have contacted the bank, notary and my Moms investment trustee to advise them I have rescinded agreement to there being a single signatory. They have agreed to contact me whenever my brother attempts to act alone and I will not be signing off on anything until there is a full accounting of each penny spent from my Mothers estate. As my brother has declined all my offers of coming to Montreal to assist him, has provided me with no documents, has not paid off debts or taxes or even the beneficiaries named but has motored his way through upwards of 60k repairing boathouses on land we don't own etc.
    I am unemployed having quit my job to nurse my Mom through pancreatic cancer. Unless a lawyer will help me on the promise of payment later, I cannot afford to retain one at this time, especially one in a different province. I'm wondering though if this isn't a criminal matter at this point and if I should just contact ?????? Who should I contact? Help!! and thanks for this site Lynne. Google is an amazing thing!!

    Karen in Toronto.

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  24. HI My uncle passed away 3 years ago. My sisters and I were told by I guess the Executor (My other uncle) that we would be getting some money. We have recieved 2 paymenta while the executer waited for a clearance certificate. We were never shown any documentation, we were never told how much to expect. First we got 2000.00 then 7000.00 and all we did was sign a piece of paper saying that is what we recieved. 2 1/2 years passed no clerance certificate, I called and asked executor what was going on and finaly he says he recieved the clearance certificate, but now he was waiting for the lawyer to create a trust fund for one of my sisters. So 5 months, we are still waiting for our final payment, we are still waiting for a trust fund to be made. And when I asked how much should I be expecting the executer tells me he doesnt have an exact number but he gave us about 80-90% and that he had to pay the lawyer..... Does all this seem right??? Ive never been throught this, should we have seen some kinda documentation showing us how he figured out the payments, can he hold a payment once he has recieved a clearance certificate for 5 months while waiting for a trust fund be made? Im so confused

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  25. Parts of this sound right. Getting 80-90% while waiting for a Clearance Certificate sounds fine. Putting money into a trust for someone sounds fine, assuming that was in the will. My impression is that the executor is doing his best to follow instructions. Parts of this don't sound right, though. The problem I see, based on what you've said here, is that you were only asked to sign a receipt for the money you got. I can see that being ok for the first distribution of $2000 as that wasn't the bulk of the estate. I would have thought that at the time the main part of the estate was distributed (the $7000), the executor would have provided you with a set of financial statements. The statements should have shown what he's received into the estate, what he has cashed in or sold, what he's already paid to you, how much he is putting into the trust for your sister, how much he is holding back for the lawyer and how much he is holding back for tax. At this point you would be expected to sign more than just a receipt though. You should be asked to sign a release in which you approve of what the executor is doing. This is not necessarily the executor's failing. If he hasn't been an executor before, he probably doesn't know what he's supposed to give you, and is relying on the lawyer. I am also concerned about taking 5 months to set up a trust. That's absurd, unless there is something unclear about the trust that has to be clarified by the courts. Setting up a trust can be done within a few days.

    Lynne

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  26. re:my last post - april 16 2011

    Thanks Lynn for the information. I called the executer again today and now he says the trust is no longer in the lawyers hands, but now in the govenments and we now have to wait some more. Does this change the amount that is to be put into the trust? And if I have not seen any of these financial documents and have not signed a release should I ask him for this documentation? Or wait and assume he is being honest? I feel terrible asking for this documentation cause then it seems like I am accusing him or dont belive him, but I just want to know what im entitled to know.

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  27. My mom just passed away a few weeks ago. We have had issues of my sister financially abusing my Mom for many years. It was something that none of the family could do anything about. My Mom was at my sister's house the week prior to her passing away, during that week, she made up a funeral services list, a possessions list, and the name of the executor of my Mom's will was added on title of Mom's condo. This was all done without any other family members involvement, other than my sister. None of us were made aware of any of this until after Mom had passed away. The lists are in my sister's handwriting with my poor Mom's signature, and my sister's boyfriends signature. My Mom was in a lot of pain, she was on very strong pain medication. She was suffering from liver cancer, that had spread everywhere. Our family does not feel that this possessions list should be valid. Is it legal? Another problem we are having is that my sister used my Mom's credit cards after Mom passed away. I had some of Mom's statements and we called the credit card company and were given transaction dates, a lot of which happened after Mom passed away. I have asked the executor for these statements that cover this time frame, she is not willing to give them to me. (the executor is my sister's employer and friend) The family would like my sister to be charged with fraud, we feel that the executor is covering up a crime. Do I not have the right to see these? I am a specific beneficiarie, my children are residuary beneficiaries. I have yet another problem, my sister is the realtor of my Mom's condo. We have expressed our concern over this and it is being left as is. My brother and I do not have access to Mom's condo, why should my sister? Is that not a conflict of interest? My sister also got her way with many aspects of Mom's funeral, my brother and I's wishes were not met on many things. I am beyond frustrated, the treatment my Mom has received from my sister has been absolutely unforgiveable. I want it to end. Our family feels that she is still taking and taking from Mom even now that she is gone. We feel we are definitely not receiving equal treatment from the executor, actually far from it.I should also let you know that my Mom did make up a will this past October when she was still well. We would never disagree with anything my Mom decided on while she was still well. We also feel that if she wanted to do up a possessions list she would have done it then. We feel that my sister coerced her and pushed her into doing this. She has herself receiving almost everything. I am to receive one thing. My Mom and I were very close and I know my Mom would never do that.Please help.

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  28. Hello

    I need advice.

    My older brother passed away Jan 2007.
    My sister is the executor who has mishandled the estate with her red neck husband and a lawyer who does not do estate law.
    The furnal home has not been paid.
    They took the pension fund company to court and lost it.
    London Life sent four checks to the four named beneficiaries.
    Money was offered by one of them and was turned down by the red neck husband because they were going after the pension. It was given to my brother's second wife.
    Now my sister and the two red necks are taking the four named beneficiaries to court to get the London Life money.

    As aq brother what can I do to clear this mess up?

    ReplyDelete
  29. I am the executor of a will. My partner passed away 5 months ago. His 2 children and 2 stepchildren are beneficiaries of the will. My partner had been fighting with his ex common law wife for 7 years over a home that they owned. She never lived in it but at the time they purchased it was in both their names. But as soon as he passed away she had the title changed into her name. Went to the bank 2 days after and had the payments put into her name. Now I don't only have the will but a lawsuit with her to take care of. The kids now decided after 5 months they want to fire me because they don't like me. I have paid out of my own pocket 25,000 and if I step down will lose it all because they want to give their mom everything. I understand if I step down also there will be no will and that the step children will recieve nothing. I won't get my money back until the estate is settle if ever. I have never seen or done something so crazy as this right now. Thanks

    ReplyDelete
  30. Hello. I'm so sorry to hear about the loss of your partner. And I'm doubly sorry that dealing with his estate has been so difficult.

    With respect to the house, if it was in joint ownership with his ex-wife, she was within her rights to take his name off the title. Joint ownership comes with a right of survivorship for the owner who outlives the other. But that's general information. Other factors might influence that general statement, such as whether or not you lived in that home, and whether you were legally married to your partner (as opposed to common law) and which province you live in.

    I assume there is more I don't know about that issue because you mentioned a lawsuit.

    The issue with the kids wanting you to step down is interesting (and I'm sure very stressful for you). Basically, they can't fire you because they didn't hire you - your partner named you to the job of executor. If you don't want to step down, you don't have to. If they feel they have legal grounds to force you out, they can ask a judge for that.

    Having said that, I don't envy any executor who has to deal with hostile beneficiaries. On the other hand, being a beneficiary dealing with a hostile executor is even worse.

    If you step down, it doesn't mean there "is no will". There would still be a will, just no named executor. The next step would have to be appointing someone else to take your place. That person (an administrator) would legally be required to follow the will.

    I don't believe that you will lose your $25,000 if it was spent on estate-related costs such as funeral, maintaining assets, probate etc. But you're right that you wouldn't get it back until the estate settled. And keep that in mind as you debate whether you want to abdicate control of this estate in favour of those who would like to cut you out.


    I strongly urge you to consult a lawyer. One with plenty of experience in estates. NOT someone who does one or two a year, but someone who does this every day. Some of the information that you're relying on is not, in my opinion, really correct and you would greatly benefit from talking over your situation.

    I wish you the very best with this. Hang in there.

    Lynne

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  31. Hi Lynne,
    Just wondering what my rights are as a beneficiary...my aunt's will gave 15% to her church and the residue was then to be divided by the executor's following a seperate letter given to them by my aunt. apparently my aunt didn't want people to know who was getting what but am I entitled to know what she had designated for me???
    Thanks,

    ReplyDelete
  32. Hi there,

    This is an unusual situation because it involves a combination of legal rights and moral obligations.

    A "separate letter" given to the executor is generally not legally binding. It's a statement of wishes and will not override a valid will. This is assuming it's actually a letter or memorandum and not a codicil.

    In cases like this, the actual wording of documents becomes very important. It's impossible for me to know the actual wording. For example, did your aunt leave the estate (less 15%) outright to the executors? This is usually what happens, along with a private side agreement between the aunt and the executor. I would not advise a client to do it this way, as on the face of the will, it appears that the only beneficiary is the executor.

    I've seen wills where the testator (in this case your aunt) has simply said that they leave the estate to the executor to distribute as the executor sees fit, knowing that there will be a private document with directions. This kind of wording gives the executor full discretion to make any division he or she wants to make, including keeping 100% of it for him/herself.

    As you can see, these are far from being good ways to set up a will.

    It's possible that your aunt made up a schedule and incorporated it into the will, but this seems highly unlikely based on the wish for privacy that you have described.

    At this point I don't believe you have many rights because a) you obviously are not a residuary beneficiary of the estate and b)even if you were a residuary beneficiary, that only entitles you to see the will, not private documents between your aunt and the executor.

    Having said that, I have read cases in which a court upheld a moral obligation to distribute an estate a certain way. The downside to that is the fact that it takes a judge to decide the outcome.

    Best of luck,
    Lynne

    ReplyDelete
  33. Is the executor of an estate entitled to monetary compensation from the estate for the job that they have done for the deceased?

    ReplyDelete
    Replies
    1. Yes, definitely, unless the will specifically says the executor is not to be paid.

      Lynne

      Delete
  34. What a wonderful web we weave is all I can say. My spouse was told by his best friend that he would leave (x) property to him in the event of his death. He also told him it was left to him in his will. Upon our friend committing suicide, he had written a suicide note giving (x) property to someone else. Namely to family member of ex girlfriends, who is in part suppose to be named Executor. 6 days before he took his life , deceased friend, once again said that (x) was left to him. All of a sudden the ex girlfriend states that the note overpowers the will. But yet offered to sell (x) property to my spouse. Nothing has been probated through the courts and she has already changed things on the property. I doubt very much if she can do this.. it gets more tangled everyday... and can a suicide note be deemed as a Dying Declaration?

    ReplyDelete
  35. As a beneficiary am I entitled to see the will and any financial papers of the deceased? I feel that one of the co-executors wife's has a personal vendetta to score against 2 of the heirs and she is wasting a lot of money in the process and my uncle is allowing this to happen. Also when they see the lawyer ( every 2 weeks) am I allowed to go and see what is going on , because I do believe this is very excessive and money is being wasted. Finally if the deceased gave on of the heirs a loan in 1991 (everything signed, still have the paperwork) and it was never repaid would this be deducted from any inheritance?
    thanks for your time.

    ReplyDelete
  36. Hi John,
    The general rule about seeing the will is that residuary beneficiaries are entitled to see the will and all probate documents, while specific beneficiaries are not. A specific beneficiary is someone who is getting an identifed gift such as a piece of jewelry, or the set sum of $500. A residuary beneficiary is someone who is getting a share of the entire estate, and whose inheritance is directly affected by expenses of the estate. For example, if an estate is "divided between my two sons", both of the sons are residuary beneficiaries.

    Going to the lawyer every two weeks for an extended period of time is not usual. There just isn't that much to say or do that can't be dealt with on the phone or email. My guess would be that the executors have hired the lawyer to do the things that an executor normally would do, such as listing the house, paying the bills, keeping the financial records, gathering in assets etc. If this is the case, the executors should not expect to receive an executor's fee, because the executor's fee is going to have to cover the lawyer's fee.

    Whether the loan to an heir is going to be deducted will depend in part on the wording of the will and on the relationship of the heir to the deceased. For example, when a child receives a large loan or gift from a parent during the parent's lifetime, that is something that should be deducted from the child's inheritance. That can be changed by the will, since many parents say in the will that they forgive any loans to their kids.

    If the person who borrowed the money is not one of the kids, I would assume that it is someething that should be repaid, but as always there are circumstances that can change that.

    If you can't get straight answers by asking your aunt and uncle what's happening, consider asking a lawyer to represent you to find out what's going on.

    Lynne

    ReplyDelete
  37. I have 2 sisters who are the executors to my moms estate. If my mom is still alive can she make decisions about her investments that can override the executors if she feels her money is not being invested wisely?
    Thanks Debra

    ReplyDelete
  38. Hi setup (great name!)

    An executor is appointed under a will and has NO AUTHORITY WHATSOEVER until the person - in this case your Mom - has died.

    It's possible that your sisters have been appointed under a Power of Attorney. Unlike a will, that document does give the power for someone to act while the donor (your mom)is still alive.

    Assuming there is a power of attorney document, and assuming it has been properly and legally invoked into action (many require two doctors to sign)then the remaining concern is your mom's mental ability to make financial decisions.

    If your mom is mentally capable of these decisions, then certainly she is entitled to make them for herself. If she does not have capacity, then it is proper for your sisters as attorneys to over-rule her.

    Lynne

    ReplyDelete
  39. Hi Lynne
    My Mom recently passed away and my sister was named executor.
    My sister has sent me a Final Estate Report. It includes withdrawals and deposits with a closing balance, plus a copy of "Asking For A Clearance Certificate" not signed.
    My sister also sent a release form for me to sign saying I have received everything in full all sums paid.
    When I emailed her and said she sent the wrong form my sister emailed back "Its a mater of trust". What do I do now? I don't want to hire a lawyer as it would put too much of a strain on the family relationships. Where do I go from here?
    Thankyou Bruce

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  40. Hello Lynne, I could really use some information. My ex husband died in 2005. I have a child who was about 8 at the time. My ex-husband was under the care of the public trustee as a result of a brain injury. We have never seen any documents regarding his estate, and were not advised of the childs pension that my daughter was entitled to. I just happened to discover this from my sister this summer. I applied for the money, canada pension paid one year of back pay and refused to pay the rest claiming I should have filed sooner. How could I file for something I didn't know existed? The province insists they had no responsibility to inform me of anything. I still have no idea what happened with anything of his. I didn't even know where he was buried until recently. How can I fix this?

    ReplyDelete
  41. Hi Lynne:

    I am the executor for my aunt and uncle's estate. I live in Ontario and they are in BC. I am concerned that, when the time comes, I would have to leave work for an extended period of time to fulfill my duties. What is a reasonable amount of time to budget for the tasks immediately following their passing?

    ReplyDelete
  42. Hello Lynne:

    Cash gifts are distributed after the estate has paid expenses. If there are insufficient funds to pay the gifts are the prorated according to the funds available?

    Thanks

    ReplyDelete
  43. Hi. I'm answering this question as a new blog post on March 13, 2012.

    Lynne

    ReplyDelete
  44. Hi Lynne
    My father passed away 9 months ago and to make a long story short, the executor closed his bank account before ensuring all taxes were covered and distributed the funds to the beneficiaries. To the best of my knowledge, she has no clearance certificate and my fathers estate (beneficiaries) now owe taxes. Can the executor be made liable as she did not fulfill her duties properly.

    ReplyDelete
  45. Hi Lynne,

    My father-in-law passed away in Oct. 2010. My brother-in-law was named executor. He has taken his time in probating and doing what is necessary for his sister to receive any cash assets. Is there a statute of limitations for him to complete the distribution of the assets to the rest of the family? Is there any legal action we can take? Thank you.

    ReplyDelete
  46. Wow I wish I had discovered your blog long before now, I'm at the accounting phase of things just looking for administration fee amounts!

    I think this blog is incredibly helpful. My main issue as an Executrix is that the beneficiaries fail to grasp how long this process takes even if it is simple and straightforward. They want their money and fail to grasp that distribution can't even be contemplated on any level until the T3 tax return amount is known, which can't even be filed until a year after death and can take 6 months to get back. If someone with the ability to broadcast to the world (you lol) would make it known that an average probate length is 2 years and beneficiaries shouldn't be expecting money before then, that would be fantastic. I've worked my butt off to move this through as quickly as possible and still it will be 2 months shy of 2 years duration, I feel bad for the executors who beneficiaries here are complaining about time lengths mere months after death.

    ReplyDelete
    Replies
    1. Hi. Thanks for the positive feedback. I really appreciated hearing that you find the information here helpful. I'm definitely out there "preaching" the wills and estates messages to the best of my ability :)

      You're right that an estate can take two years and that is very hard for beneficiaries to accept and understand. They won't really know how much work there is to be done on an estate until they become executors themselves.

      The only thing I can suggest to executors is that they begin a consistent line of communication with the beneficiaries right from the start. At the beginning it might be once a week or every two weeks, and once the documents go to probate it could be once a month. It just needs to be a summary of what the executor has dealt with since the last communication, and some notes about what's pending. For example the executor might say that the house is now on the market and the realtor anticipates it will take 60+ days to sell. At least that way they can see some progress, and can also see that some things (like someone making an offer on the house) are not within the executor's power to speed along.

      Lynne

      Delete
  47. I have a question,

    I am trying to do the suggested fee schedule and I have 3 trusts that I am going to be handling for some time to come. My question is at what point do the expenses for administering trusts transfer from an estate expense to a direct trust expense? I already have found a fee guideline amount of 3/10 of 1% to 6/10 of 1%, but I am not sure at what point I am to indicate that expense upon the estate vs. when I start deducting it directly from the trusts?

    ReplyDelete
  48. I'm a little confused about the professional fees involved. My mother is an executor of a will and the lawyer who has assisted her with the proper legal forms etc, has sent her a lengthy letter and bill stating that his fees are to be paid out of her own pocket or rather out of her executors fee. It has been my understanding that all professional fees regarding the estate are paid out of the estate. Am I wrong in this? Thank you in advance for your comments.

    ReplyDelete
  49. I am the executor for my Mother's estate in B.C. There are two beneficiaries, myself and my sister. I have completed all taxes using a professional accountant and paid all taxes and debts. At the one year mark, I distributed over 95% of the estate to my sister and myself. However, just in case there was a tax audit or re-assessment, I held back some money in an estate account. I did not seek a clearance certificate from Revenue Canada because I felt it would be quicker and easier to get an agreement from my sister that if Revenue Canada sought additional money, she would pay her half. She has avoided agreeing to this and has finally said this is my risk and she would not pay her share. Recently I made another payment to her and she now has 99% of what she is entitled to. It is now two years since my Mother passed away. The amount left to divide is not large and although I really want to divide it and finish this off, I don't see why I should be put at risk should further taxes be owed. Should I seek a clearance certificate now given that it may take 6 months or more to get, or just pay her out and take the risk. Is there a time that is considered too long to make the final distribution? I feel my sister is becoming threatening and make take legal action against me. Please advise. Thanks!

    ReplyDelete
  50. Hello just found your site and I am hoping you can answer a question for me. My father passes away july 19 this year. He was living in a lodge in Alberta and had very few assets. A few personal items and such. He had a small amount of money less than 20 thousand in The bank. My brother was named as executor with myself as alternate. Because of his job he has had to decline the position. We went to the bank to inform them of my fathers passing and set up an estate account until income tax and all bills were paid. He informed the bank manager his decision to decline the executor position. Now 2 weeks later they have informed me that they have frozen the account and that he has to go to a lawyer to step down as executor. Really? Is this really necessary ?

    ReplyDelete
    Replies
    1. While you don't necessarily have to hire a lawyer, it's true that informing someone verbally of your intention to step down is not enough. The two weeks would have passed while the bank manager (who after all is not a lawyer) ran the will past the legal department, who informed him of this.

      When a named executor steps down, it has to be done in writing. As you're in Alberta, your brother needs to fill in a form called NC12 Renunciation of Probate. If there was going to be an application to the court for probate, that NC12 would have to be filed with the application. If you're not filing for probate, attach the signed NC12 to the will and keep them together. Otherwise you as alternate will have no legal authority.

      You'll see on my site a link to www.Canlii.org, a free legal research site where you can find forms.

      But just so you know, I covered renunciation in Chapter 6 of my 2011 Alberta Probate Kit, and the form can be found on the CD that comes with the book.

      Lynne

      Delete
  51. If my brother dies without a will and has no assets (only debts (income tax, credit union, etc.)) at the time of his death, does his work pension and life insurance become part of his estate if he named me as sole beneficiary. I also applied to be his trustee which was approved at least six months after his death. The income tax form for his pension was made out to me and I included it as my income and paid the taxes. I am a little confused when I read "estate" as to what consititutes an estate.

    ReplyDelete
  52. Hi Lynn,

    Our family has been waiting for a clearance certificate on an estate for over 5 years. The executor has told us to "stop bugging him" and is no longer responding to phone calls or even letters from our lawyer. There is a substantial sum of money in question, and we are just wondering if the best recourse is to request the estate accounting through the courts? We haven't seen any accounting since an initial pay out five years ago. We were told at that time that the remainder of the money was being held for CRA. Also, how detailed does the accounting have to be? If it is stated that there was a loss in an investment, can we request the specific proof of that or is a letter from his lawyer all that we are entitled to?

    ReplyDelete
  53. I must admit I am/was a horrible Executrix as I was too depressed to deal with my mom's estate and took a long time (almost a year) before I finally got a lawyer to work on things and probate the will for us and now I am getting anxious over not filing final tax returns on time and dealing with what the repercussions will be. My best advice is for people to see a lawyer asap and relieve some of the stress, because as I found out, waiting causes bigger headaches.

    ReplyDelete
    Replies
    1. I'm sorry to hear it was so tough on you. If it helps any, you definitely are not alone in the struggle to deal with legal and financial matters when all you really want to do is grieve. Hang in there.

      Lynne

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  54. Can you tell me what happens if all heirs do not agree with the statement of accounts? Who looks at that and would the person(s) be contacted regarding why they do not agree with a statment of accounts? I disagreed with the stmt of accounts over a year ago and nothing has happened with the will since. The executor is not co-operative.

    ReplyDelete
    Replies
    1. Hi Kelly, thanks for this really good question. I've created a new blog post to answer it, as I thought everyone would like to know the answer, dated October 2, 2012.
      Lynne

      Delete
  55. Very interesting blog giving the details about real estate law.i did get lots of good points from here. thanks for sharing.
    Jeffrey T. Angley

    ReplyDelete
  56. My mother passed yesterday. My brother and I are named co-executors and co-beneficiaries of her will. Are there any issues we should be aware of with this kind of arrangement?

    ReplyDelete
    Replies
    1. I'm sorry to hear about your Mom's passing.

      You and your brother should start by agreeing on open communication. Your decisions all have to be made jointly. If you're going to use a lawyer, go to the meetings together and ask that all correspondence be addressed to both of you.

      The biggest issue with co-executors is the potential for disputes between them, with nobody neutral to defuse a tense situation. If you find that you two are arguing, please get outside help. Once the estate is divided and the tax returns are done, you two will still be brothers and friends if you can just avoid fighting. Your outside help could be a trust company, or maybe even an experienced estate lawyer.

      If there are other beneficiaries, be fair to them and keep them in the loop.

      If I can help, please send me your questions. Or, if you're in Alberta, get a copy of my book, Alberta Probate Kit, for tons of good information.

      Lynne

      Delete
  57. Hi Lynne
    I was just wondering how long an executor has to distribute the estate to the beneficiaries once the executor has received the signed releases?
    Thanks.

    ReplyDelete
    Replies
    1. There is no set time limit. All we have is that the time should be reasonable. Normally the funds come out pretty quickly once all releases have been signed because the executor doesn't send out the releases until he or she is ready to do the payout. Is it possible that there is one release not signed and the executor is waiting for that?

      Lynne

      Delete
  58. I have a recent passing away of my grandmother. I was joint owners of the land where both of our houses are built on. It has been a week and yet no will produced and no executor proving they are executors. My sister says she is but will not produced the will or answer any questions. She did not come and plan the funeral or anything in the nature of the my grandmothers death she showed up the first time for the funeral. The if is executor has recently went bankrupt and officially threatened my mother today the only survivng child who's health is not good.

    I have two questions one with the joint owned land I know that it is left to the surviving joint owner. So my question is the assets that are in the house that is on my property, does the executor have to prove to me that she is prior to allowing her in the house or can she break in while I am at work?

    Second question how long can she hold the will without letting any of the beneficiaries know that they are beneficiaries or not?

    Thank You


    ReplyDelete
  59. Hi Lynne,

    I was wondering if you can advise me of a question i had.....my grandmother had passed away in 2005 and left $1000 to be placed in trust for each of my 3 kids to be theirs when they turn 21. My Aunt was the executor but for the past 7 yrs will not disclose to me where the trusts were setup or any info at all about them so i can put the info away for my children. Can an executor spend another beneficiary's money or does a lawyer complete the trusts....i'm worried these trusts were not setup...pls help as I dont even know who the lawyer was....thanks for your assistance!

    ReplyDelete
    Replies
    1. The executor can spend estate money to pay taxes and debts, even if this means there is nothing left for the beneficiaries. However it doesn't sound as if that is your case, or the executor would have just said there are no trusts for the kids.

      As a parent, you're in an odd situation. You're not entitled to information about the trusts, even though you're a parent, because the trust relationship is between the executor and the children.

      Having said that, I can certainly understand your concern that the secretive behaviour could conceal that the money is missing.

      You could go the probate court nearest where your grandmother lived and do a search. This would tell you what was in the estate (including debts) as well as the lawyer who filed the papers.

      Lynne

      Delete
  60. My wife was on a joint land title with her grandmaother who has since past away 1 year ago. The will is out of probate. The will states that the estate is to be didved equally by 7 grandchildren. The will does not state what her estate consists of. Mty wife is now the owner of the home due to the land title. could it be assumed that house was to form part of the estate? we have been told by our lawyer that the house no longer is part of the estate. Any advice.

    ReplyDelete
    Replies
    1. You're right that the will doesn't say what the estate consists of, nor should it. But when the application for probate was filed with the court, it must have had an inventory attached to it. I would agree with your lawyer that the house isn't in the estate because of the joint ownership.

      Lynne

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  61. Hello Lynne,

    Thank you very much for the useful information. My dad sadly took his own life about a month ago, he was very depressed and many of his problems were related to his debt. My sister is doing paperwork to become the executor (there was no will) but we are just in our early 20s and don't have much knowledge of how this sort of thing works. We will be receiving a generous life insurance payment, and he also had a large pension from his work but that will be going straight to his estate (his debt, as there was no beneficiary). He owes a lot on his mortgage and to some other creditors as well. Our hope is that the money going to the estate from his pension will go towards the mortgage and if we give them the life insurance money, we will have enough to pay off the house, sell it, and use some of the money to pay off his other debts. We are heartbroken about this and he just wanted to provide for us so we really dont want to let them take everything else after they already took his life; it just feels like they're still kicking him while he's down. Can we allocate what the pension goes to (his mortgage) and pay the rest ourselves so that we can keep the home? Also, could his other creditors take the home or can they only make us pay the amount he owes (which is much less than the value of the home)?

    Any advice to calm our nerves would be very much appreciated as we are very lost and have no money yet for a lawyer.

    Thank you,

    Claudia

    ReplyDelete
    Replies
    1. Hi Claudia,

      I'm so sorry to hear about your dad. Take your time with the estate and don't rush into any decisions while you're still in shock. You have the right idea, i.e. that the pension will be used to pay off debts but depending on the nature of the debts (secured vs. unsecured for example) and how much money is available, you may not get to allocate what is paid first. You and your sister can use your insurance proceeds to pay off estate debts, but you don't have to. That money is yours. I know you said you don't have money for a lawyer, but have you considered asking a trust company to run this estate? You could use some advice and support right about now, and fees won't get taken until there is money in the estate (so you don't pay up front). If that seems like an option to you, call up the bank where you bank or where your dad's mortgage is, and ask them to put you in touch with their trust company.

      Sending you positive thoughts. Hang in there.

      Lynne

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  62. My husband died recently with no assets other than the house and vehicles that we own jointly. He owes a large tax bill. Can you tell me if I am obligated to pay this out of my own money? Also, his company is paying him for this month even though he passed away on December 1. His pay is automatically deposited into a joint account. Is this part of his estate, or is it my money to use as I see fit?

    Thank you for your help.

    ReplyDelete
    Replies
    1. Hi Judy,
      Normally the assets that are in joint names belong to the surviving joint owner when one passes away.

      Lynne

      Delete
  63. Hello Lynne, my father passed away about a year ago. I am executor for his estate and my mother is sole benefactor (all liquid assets). My mother has a Will however it only names my father as executor and sole benefactor. My mother has Alzeihmers so at this point I don't think we can update her Will. My question is: if my mother's estate reverts to my father when she passes, and he is deceased, does that mean as executor for my father's estate I, by default, can act on behalf of Mom's estate? Our concern (my siblings and me) is not how her assets will be dispursed. We'd just like to avoid probate and associated costs.

    ReplyDelete
    Replies
    1. Hi Cheryl. It's possible for a person with Alzheimer's to make a new will within limited circumstances, but it's tricky and the results are often challenged. In any event, that's not the question you asked me :). As your father has already passed away, your mother's estate probably won't pass to him, unless the wording of the will makes it clear that it should. Normally when someone has already passed away, a will is distributed accordingly, with that person out of the picture. As your mother didn't name an alternate beneficiary in case your father died first, most likely her estate will pass according to local intestacy law. No, this doesn't make you executor of her estate. Oddly enough, it sounds as if she is going to end up with a will but no executor and no beneficiaries. She had some bad legal advice on that one, unless of course she made the will without a lawyer.

      Even if you were automatically the executor, this wouldn't necessarily avoid probate costs. This will very much depend on the nature and amount of the assets. You said the assets are all liquid, but if they are held in bank accounts or investments, you would likely need to apply for probate anyway.

      If the assets are in a RRIF, they will go to whoever is named as beneficiary. In this case no doubt your mother only named your father anyway, which means any RRIF would fall into the estate. Again, depending on the amount, you would likely need probate anyway.

      I know this isn't the answer you wanted, but these are my thoughts.

      Lynne

      Delete
  64. Hi Lynne, thanks for the insights to consider. My father-in-law owns a property that is rented out, but he lives in a different property where he does not own and pays rent. Would the property that he owns be considered his primary residence? what tax implications will there be if he dies? how can he plan and avoid unnecessary estate taxes upon death?

    ReplyDelete
    Replies
    1. Hi. The house he owns can be considered your father's principal residence. Make sure you use an accountant for estate taxes when the time comes, to ensure that this is done properly. Assuming it's his principal residence, there will be no capital gains tax assessed when the property is sold or transferred.

      Lynne

      Delete
  65. My ex passed away and despite our divorce agreement did not name me as beneficiary on his existing life insurance policies (nor either of our two children 10 and 13). I am also not sure what provisions were made in his will at all. What do I do? (He paid child support)

    ReplyDelete
  66. Hi, my father inlaw passed away this past Dec with no will, be refused to sign one, my husband is an only child, but my father inlaw had a girl friend who was living with him at the time and they have always filed single on their taxes, absolutly everything was in his name, nothing but a bank account that he added her name to just weeks before he passed. Now our issue is that she is now saying she wants common law rights to the estate, and wants the first $65000 and then have the rest of the estate devided between her and my husband 50/50. My question is what will she have to do to prove commmon law status, and what can we do to make sure she doesn't receive the bigger portion of the estate?? We have tried talking to her, we dont want her to go without, but we feel that she does not deserve more then my husband.

    ReplyDelete
    Replies
    1. Which province was your dad living in when he died? Each province has its own rules about common law and inheritance.

      Lynne

      Delete
  67. BC...sorry I thought I stated that.

    ReplyDelete
  68. Hi lynne my grandmother past away .she had listed her main residence in the will but left out another.it states all remaining. Shall be divided equally between us but does this count since it is not listed how can I know if the executor divides it equally or at all? Do they have to since that residence was not included? Any respond would be greatly appreciated

    ReplyDelete
    Replies
    1. Hi lynne I must add I am a specific benefitiary for one property in the will but also a risiduary beneficiary for the rest of the estate witch is divided equally in 3 do I have a right to know information if I am both.

      Delete
  69. How do you collect money left to you in a will if the Executor hasn't paid you? Can you go through small claims court to get the money that is due to you?

    ReplyDelete
    Replies
    1. No, you can't use Small Claims Court. Everything to do with an estate has to be filed with the probate court, using the action number (the case file number) that was begun when the probate was filed. However, it's not as simple as that. There could be legitimate delays due to claims against the estate, unpaid taxes, valuation problems, etc. And with estates, a judge won't order an executor to pay you if the executor hasn't paid all of the debts of the estate yet. So,it's complicated. I suggest you see a lawyer in your area who can advise you of your options.

      Delete
  70. hi lynn, i can not trust my husband with money as he always ends up loosing everything in stocks. so is it possible to appoint my 2 minor children as beneficiaries to my life insurance plans, property and other assets? if so, then how do i insure my husband does not get access to the money while my kids schooling and daily expenses are financed through their inheritance?

    ReplyDelete
    Replies
    1. Hi. I answered your question in a new blog post. Please click here (or cut and paste into your browser): http://www.blogger.com/blogger.g?blogID=436024129575354145#editor/target=post;postID=7509323796555833610

      Delete
  71. Hi Lynne,
    What is the executor suppose to communicate with the residuary beneficiaries? Can the executor ignore all the questions of one beneciary but allow the other to benefit from the estate by allowing them to get property that was failed to be accounted for and live the home that was left to both rent free, but constantly ignore the other that gets equal share? Also, if there is currently a lawsuit filed in court against the estate claiming that the exector has not been acting in good faith and have failed to include all debts or assets of the estate, can the executor continue ignoring that lawsuit, like not answer affidavits to the funeral home that they filed along with other people and companies? Can the executor continue to sell off assests and not pay anything off or answer these lawsuits? some of these companies are now coming at the beneficary that has not received anything from the estate at all yet, and they are getting ignored as well from the executor, and are worried that they are going to sell the property and benefit themselves and the other beneficary without any regard to anyone else or the pending lawsuits? The have not answered any affidavit since June of 2012 and everyone is still waiting for a response? is there a time limit the courts will allow this ignoring to go on and make a ruling on this estate, while they wipe it clean?

    ReplyDelete
    Replies
    1. Now this is one out of control executor. Wow. Since there is already a lawsuit pending, it would make sense to me to quit waiting for a response from the executor and push ahead with the lawsuit. Otherwise the assets are going to be gone. Yes, a judge will definitely go ahead with a lawsuit without a response, when the circumstances are right. This sure seems to be one of those times. Don't let it go too long, as if you let the lawsuit lapse completely the court may, as you say, wipe it clean. Make it clear to your lawyer that you want to push ahead.

      Lynne

      Delete
  72. Lynne
    As one of three executors on a will is there an easy way such that one person can file the final tax report to CRA?
    We are scattered across Ontario
    Thanks Randy

    ReplyDelete
    Replies
    1. Generally CRA will want all of the executors to sign tax reports. With scanning and emailing of documents to each other for signing before sending to CRA, that shouldn't be too much of a problem.

      Lynne

      Delete
  73. Dear Lynne, I have a dilemma. I was married to a spendthrift for 25 years. When I couldn't take it anymore, I left and move four provinces away. I took very little with me, and left quite a bit of assets in the house. My husband passed away ten months later. It was upon receiving a copy of his Will, that I became aware that he removed me from tenants in common, to the Estate of CJB and myself. The three executors put my husband in an old folks home and rented the house out on a six month lease. The Lease expired August 2012. Since that time the tenant has not paid rent. The executors will not deal with my lawyer, nor correspond in any way. Obviously with he tenants not paying the rent, the mortgage isn't being paid either. I have already paid 2.5 months of mortgage payments, but I have no more money. The lawyers don't want the 'rock the boat' because the tenants might want to buy the house. The tenant says he has the money but won't pay it until he is directed by someone with authority. Both lawyers are sitting by, letting their hours accummulate, and I am getting stressed. The Executors will not do anything to help.....they have pocketed the insurance money and are forcing me into bankruptcy. Do I have a right to sue the Executors, and if so, how?
    I have sent an email giving the tenant three banking days to get the arrears paid to either of the lawyers. If he doesn't comply, I will have to start the Eviction process.
    Any advice you can offer to me would certainly be appreciated. If this house goes into bankruptcy, back to the bank, then my credit will be dashed....and I am in the process of buying a new home.
    Help me? Please.

    ReplyDelete
    Replies
    1. Your husband could not have put the house into the name of his own estate. The executors would have done that after his death.

      You have an interesting relationship with your lawyer. Their job is to advise, but they don't run the show. If they don't want to rock the boat, but you do, then tell them to rock it anyway or you'll hire someone else.

      By the way, if the lawyers are "sitting by", which I take to mean doing nothing, then the hours are not accumulating. Hours only accumulate when work is done.

      Try telling the executors that you are putting the house on the market. Their job is to maximize the estate so they should be happy about it being sold. That way the unpaying tenant will be forced to leave, you can collect your money for your half of the house and be rid of the whole thing. If they won't comply, your course of action is to take them to court in the probate courts. You will be asking the judge to force the executors to take some steps regarding the house within the time limit set by the judge.

      Lynne

      Delete
  74. Dear Lynne,
    I have a unique situation. My grandmother passed 10 years ago.
    Shortly thereafter a married couple befriended my grandfather. Fast forward to just recently when my grandfather passed.
    I recently received a letter from one the married couple outlining a bequest my grandfather had made to myself and his three other grandchildren. We were notified we would be receiving some funds per my grandfathers last will.

    ReplyDelete
  75. My Mother passed away last April. Just 2 days ago I came to find out that 1 of my sisters entered my house and stole both my parents ashes that I had in my possession. I have asked for a copy of my Mom's income tax and the self named executor (another sister that is on on the stealing of the ashes) told me she would not provide me with one. Am I entitled to see the results from Revenue Canada on my Mom's estate?

    ReplyDelete
    Replies
    1. There's a whole lot going on here that makes no sense. There is no such thing as a "self-named executor". Either someone is named in the will as executor, or the court appoints them as an administrator. No other options exist in terms of gaining legal authority over someone's estate.

      An executor is entitled to dispose of the deceased's remains. However, nobody - whether executor or not - is entitled to break into someone's home. If this really happened and you really want to deal with it then call the police.

      Generally speaking, nobody but an executor or administrator is entitled to receive information such as tax returns from CRA. However, if there is a dispute over the executor's accounting (and I'm guessing there wasn't even an accounting given here since you guys are seriously battling things out) then showing the CRA statement could be a way of resolving the dispute.

      Lynne

      Delete
  76. My father passed Mar of 2013, my 2 brothers and myself are the beneficiaries with his sister getting 50,000 lump sum from the estate. My aunts husband was named executor. My question is are the contents of his home part of the estate or can my uncle(executor) do with his belongings as he please, eg: my Aunt and Uncles children going to the home and taking things they want as memories of my Dad? It has been so soon since his passing and I thought nothing was to be touched til probate is done.

    ReplyDelete
    Replies
    1. It's not unusual for household items to be dealt with before probate is issued.

      Yes, the contents of the home are definitely part of the estate. Ideally, the will should state what happens with the personal and household items (i.e. who is entitled to have them). However, many wills don't say anything specifically about that.

      If the will doesn't specifically address them, then the household contents belong to the residuary beneficiaries of the estate. If the executor has given them away or allowed them to be taken, he has allowed theft from the beneficiaries and should pay for the items out of his own pocket.

      Lynne

      Delete
  77. To whom it may concern :

    My aunt made a will in 2005 and noted in her will me and some of my siblings would get $5,000.00 each when she dies. (four of us)

    She had name 2 person for POA

    Then she sold her house and gave her money to charity - This made a lot of us very mad and sure did a cold in the family since then and with my aunt and POA's.
    Brought my aunt to court and we lost. We saw the will and have a copy from the court.
    Then before being incapable and ill my aunt had written on a note to her POA's " given them permission to do what so ever they wish to do with her money."

    The PO A'S has this paper which - is proof of her desires on this note signed and by my aunt in 2009.

    Then my aunt got sick late in 2009 vascular dementia.- the POA's would not tell us nothing about her finances.

    Late 2011 my aunt died and the POA'S did not give the four of us $5,000.00 each. = ($20,000.00) as per in the will.
    They spend it all or emptied the bank account and say no more money.

    Her bank account had only 5,000.00 in it. They wanted to give us $1,000.00 each or nothing at all.

    They showed us the note written in hand by my aunt and told us she had given them all and to do whatever they wished with her money. That was her last wishes to the POA's before being sick.- take it all and do what you want with my money.

    Permission to do whatever they wanted as they wished with all her money.
    Keep it all , spend it all ,

    They say they do not have to give us anything. for they have nothing. she died.
    The reason was because of the fight with the house that she gave to charity..and court for 2 years they draged her in,

    To us they ignored my aunt's last wishes in her will - Did they have the right to keep everything every month - all the money , and leaving us nothing as per her desire in the will?

    Do they have to pay this money to us 5,000.00 or did they have the power with the note to keep it all.
    Should we bring them in court or should we respects this note in 2009.

    Awaiting reply - are they right, were they allowed to spend it all ?
    Or should they be forced to pay our shares of $5,000.00 each??
    Which they say the bank has only $5,000.00 in it nothing else.

    Please reply Thank you

    ReplyDelete
  78. To whom it may concern :

    My aunt made a will in 2005 and noted in her will me and some of my siblings would get $5,000.00 each when she dies.


    She had name 2 person for POA

    Then she sold her house and gave her money to charity - This made a lot of us very mad and sure did a cold in the family since then and with my aunt and POA's.

    Then before being incapable and ill my aunt had written on a note to her POA's " given them permission to do do what so ever they wish to do with her money."
    The PO A'S has this paper which - is proof of her desires on this note signed and by my aunt in 2009.

    Then my aunt got sick late in 2009 - the POA's would not tell us nothing about her finances.

    Late 2011 my aunt died and the POA'S did not give the four of us $5,000.00 each. = ($20,000.00) as per in the will.

    Her bank account had only 5,000.00 in it. They wanted to give us $1,000.00 each or nothing at all.

    They showed us the note written in hand by my aunt and told us she had given them all and to do whatever they wished with her money. That was her last wishes to the POA's - take it all and do what you want
    with my money.

    Permission to do whatever they wanted as they wished with all her money.
    Keep it all , spend it all , did not have to give us nothing when she died.
    The reason was the because of the fight with the house that she gave to charity..

    To us they ignored my aunt's last wishes in her will - Did they have the right to keep everything every month - all the money , and leaving us nothing as per her desire in the will?

    Do they have to pay this money to us 5,000.00 or did they have the power with the note to keep it all.
    Should we bring them in court or should we respects this note in 2009.

    Awaiting reply - are they right, were they allowed to spend it all ?
    Or should they be forced to pay our shares of $5,000.00 each??
    Which they say the bank has only $5,000.00 in it nothing else.

    Please reply a s a p

    ReplyDelete
    Replies
    1. Your sense of entitlement makes me just shake my head. Your aunt gave her money to charity and that makes you mad? It's HER money, why do you get any say in whether she gives it to charity?

      The reason the POAs wouldn't give you any information about your aunt's finances while they were acting for her is that it's none of your business. Again, it's HER money and HER power of attorney and HER privacy, so where do you get the idea that you're entitled to know what's going on?

      I sincerely doubt that the note says "do what you want with my money" and I expect that it simply your interpretation of it. And if she gave all her money to charity, your $5,000 was probably already gone. You may not be aware that a POA document gives very wide power for the person appointed to do anything with the donor's money that the donor could do herself. That's the whole point of it.

      The POA's responsibility was to look after your aunt's finances in HER best interests, not yours.

      It's up to the executors of the estate to look at what the POAs have done and decide whether everything is in order. Now you want to get $20,000 out of an estate that only has $5,000. You only get what's in the will if your aunt owned it when she died. A gift under a will is just that... a gift... and if she didn't own it, she couldn't give it to you.

      Talk to the executors to see whether they are satisfied with the POA's activities.

      From what you've said in this note, I can't see any reason to criticize what the POAs have done. They appear to have followed your aunt's instructions. They are under no obligation to "save" money to be given away under her will. In fact, they would be breaching their obligation to your aunt if they did so, when the money needed to be spent on her behalf.

      You are probably out of luck, though I can tell this too will "make you mad".

      Lynne

      Delete
  79. Hi Lynn,
    Great forum - thank you. What are the steps to distribute cash inheritance from an BC Canadian estate to a non-resident of Canada? Everything has been sold, including two properties (neither were revenue properties) so the only thing remaining to distribute is the cash proceeds. The deceased, executor and all other beneficiaries are in Canada, just the one beneficiary is in the USA. Clearance certificate received.
    There seems to be a lot of conflicting information on this? Even from the CRA employees themselves.

    ReplyDelete
  80. Hi Lynne, very informative forum. My situation is I am one of the beneficiaries of the Will which is suppose to divide the inheritance equally. However one of them had made an huge undocumented loan from our parents more than 10 years ago. Our last parent had just die recently. I understand it is presumed to be a loan until he can prove that it is a gift. The question I have is can I still bring it onto the table and consider it a loan or I can't because of some "statute of limitations" law because the loan had occurred so long ago? Are there any other surprises in the law that he can deny the loan? Thanks.

    ReplyDelete
    Replies
    1. No, there is no statute of limitations on a gift or loan to a child being considered an advance on his/her inheritance.

      Lynne

      Delete
  81. Hi Lynne,
    My sister is the Executor for my parents' estate. It's been over a year since my last parent died and she has refused to give us any information. I finally got a copy of the will from the court office and it states the estate is to be divided three ways. I also found out that when she filed for the Certificate of Appointment, she listed my father had no assets other than his home (he had bank accounts and personal assets) and she under valued his home by at least $100,000.00. If I were to advise Canada Revenue Agency, would they investigate this since it appears she is attempting to avoid tax? I want my fair share, but I don't agree with tax avoidance. I believe she has done other things that are fraudulent and I want the estate to be handled honestly, as my father and mother would have wanted.

    ReplyDelete
  82. Hi Lynne,
    I was made the sole executor of my uncle's estate, in his will he has named charitable organization as the residuary beneficiary. I was also named as one of the specific beneficiaries besides being bestowed with the task of executing his estate. There are several clauses (titled - additional powers) in the will that seemed to suggest that I am not bound by time factor nor can I be questioned by any parties for whatever decisions that I undertake is final vis-a-vis re-investment of the estate, fix the value of the real estate whether whole or in part for the purpose disposal etc., etc., etc. With such wide 'power' vested in me, firstly, am I answerable to the residuary beneficiary in terms of expenses and how I manage the funds at my disposal with the banks and secondly, can I hold onto the estate till death before relinquishing it to the residuary beneficiary.

    ReplyDelete
    Replies
    1. No you can't hold onto the estate until death (I assume you're talking about your own death). Your job as executor is to follow the instructions in the will, which names beneficiaries. The broad powers in the will are there to make your job run more smoothly, and were never meant to be bent until they are broken, which is what you are asking about. Those powers are meant to be used, for example, to wait until the maturity date for an investment rather than cashing in early, all in the best interest of the estate.

      An executor is expected to wrap up an uncontested estate in about a year, with or without specific powers in the will.

      Honestly, why even take on the job of executor if you're just going to ignore it for your entire life?

      And yes, despite wide powers, you are answerable to the beneficiaries for expenses. There is a body of law out there that is not going to go away just because you are working with a will that says you have some discretion. I would have thought it obvious that the discretion is to be exercised within the law.

      If you think the charitable organization is going to let you get away with not giving them their bequest and not sue you for it (for which that will won't protect you), you're dreaming.

      Lynne

      Delete
  83. i am both an executor and a beneficiary of an estate that has been in the courts for nine years.I have read many of the above stories.I absolutely agree that property/money in estate matters are gifts.The residual beneficiaries generally fail to understand that they become shareholders/owners of the property of the deceased.They are cast into a business arrangement by the deceased through a will.In alot of cases they may never consider engaging in joint business ventures in their personal lives with any or all other beneficiaries.The role of an executor is relatively simply,the road they travel can be that of one in a war torn country.The key to success as an executor is paperwork.detailed daily diaries,receipts, avoiding verbal interactions whenever possible.If a situation arises and verbal contact is needed put it in writting after the conversation ends and send it directly to that person.An executor should act believing they may be before a judge someday.Transperency is valuable, as joint owners of property beneficiaries should be allowed information regarding estate assets to a point .The executor works for the shareholders being open and honest gives credibility to the deceased and his or her decision to nominate that person.The executor can not think for the deceased they can only act for the deceased the creation of the will is where the future deceased thinks and judges.It would be interesting to have the dead return to life and pass judgement on the beneficiaries and the executors based on their actions. Perhaps alot of wills would change. To make comment on professional sevice great idea but value is the question.As an executor , pile as much liability and accountability on a lawyer again detailed written communication. as a beneficiary force answeres to questions directly at that lawyer.At the end of the day he or she needs your agreement to get paid its your money in the lawyers trust account that lawyer now is accountable for every nickle. Any lawyer that sidesteps questions gives you the right to drag him/her into court.Question their bills ask for time records ect. Remember there are no stupid questions when it comes to lawyers but i have heard a truckload of dumb answeres from them in writing of course.I have evidence of a lawyer advertising that executors are duty bound to retain them in estate matters.not true.Take a look at the disipline digest of your law society.A large number of these cases involve trust account violations and estate matters.Before beneficiaries hang executors get all the facts. we have endless knowledge at our fingertips today, power is knowledge.

    ReplyDelete
  84. Hi Lynne my post has gone!! Just wanted to ask my sisters have took $2000,000 out if mums account over the last four years, they have put it in an account in their own names. My dad died and they have said that they intend to keep all the money and split the sale of the house between themselves! Dads will states that everything should be split four ways. My question is if they have the money in their name how can I get my share and does it now belong go them? Thank you in advance for your reply.

    ReplyDelete

  85. Hi Lynne, My Grandfathers House and estate was left to my Aunt and after my Grandfather died about a year later she decided to give it to my Uncle (her brother) and to do so,he had to get signatures of all living siblings, out of his 10 siblings he got 5 signatures. Now he wants to sell the house and one of the siblings who didn't sign wants to contest this, can this be done? Thank-you in advance.

    ReplyDelete
    Replies
    1. So, your grandfather died and left a house to your aunt. Why would she need anybody's signature to give away something she owns? There is something out of place here because what you're saying doesn't add up.

      Lynne

      Delete
  86. Dear Lynne

    Are beneficiaries of an estate entitled to see the final income tax declaration? The estate is left to 4 children equally and one is the executor.

    Thank you

    ReplyDelete
    Replies
    1. Residuary beneficiaries are entitled to a full and accurate accounting from the executor. This generally doesn't involve all pieces of paperwork being presented, but usually means that a summary and reconciliation is given. However, if you believe there is something missing or that doesn't add up, you are entitled to see the statements and tax returns that were used to prepare the executor's accounting.

      The only problem is that your average executor gets all bent out of shape when you ask for paperwork because they think they are being accused of something. So, be tactful!

      Lynne

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  87. Hi Lynne,
    I love your blog and read it often. I was hoping I would never need your advice, but sadly, I do.
    My father had a will, made me aware of its contents and he told me where he kept it in his home. He died recently and my brother (a lawyer) stayed at his home during the time of the funeral. He told me not to worry that he would take care of the paperwork.
    Out of the blue my brother contacted me and told me there is no will and everything must be sold and divided between the two of us. The problem is, my brother was given a large sum of money to buy into his law partnership, equal to what my father had given me to purchase my farm 30 years ago. (but my father kept the farm in his name because he didn't want my wife to be able to take any portion of it) My farm was left to me in the will and the balance of the estate was to be split between the two of us. Now my brother says my farm must also be sold and he is entitled to half of it. I hate to think it, but I believe he destroyed the will because he gains more without one. Do I have any options at all? My dad's original lawyer cannot be located and I just don't know where to turn.

    ReplyDelete
    Replies
    1. If the lawyer can't be located, contact the law society of your province and ask what happened to the lawyer and/or his practice. If he died or retired or moved away, it's quite possible that the law society appointed a trustee or conservator of his practice. If so, there should be a copy of the will and the lawyer's notes about your father's intentions. None of this will cost any money.

      However, assuming you are able to get a copy of the will, your road is still very much uphill. If your brother can't be convinced of your father's intentions, you may have to commence a lawsuit. Ideally, it would only be an action to probate a copy (instead of the original) of the will, but that will depend on how your brother reacts.

      Best of luck,
      Lynne

      Delete
  88. Hi, Lynne,

    Thank you for your informative site.

    My mother died recently. My two brothers and I are her beneficiaries. All three of us are also executors. we were POAs for my mother also.

    My mother suffered from dementia which had been severe for the last 3 or 4 years of her life. For several years before that she lived with one of my brothers.

    He has had money problems forever and saw my mother as his financial life raft. He did care for her but he also helped himself to considerable sums of her money.

    In 2009, my mother had a crisis and needed to be placed in long term care. Luckily, her generous pension income could be redirected to the expenses of her care directly so my brother no longer had access to it.

    We sold our family home where my mother and brother had been living. My brother had gotten my mother to sign a large mortgage which we retired from the proceeds. The rest was placed in a joint bank account under all of our names but requiring two signatures to remove any money.

    I find my family very toxic to deal with. I've also had a lot of my own problems to address. I must confess, I haven't kept a close eye on matters.

    I considered the remaining funds to still be my mother's as long as she lived. I expressed this to my brothers.

    I now discover that around $30,000. has been removed from the proceeds account. Some was removed before the initial deposit. The remainder was taken out about 2 years later. I was never consulted about this but 2 signatures would have been required. Either my spendthrift brother got my demented mother to sign or my other brother helped him by co-signing.

    I'm disgusted by all of this. My brother will never pay back anything. There simply aren't any expenses that my institutionalized mother would have had in that amount when all her expenses were being paid through the long term care home.

    The only thing I can imagine is that my spendthrift brother maybe kept a joint credit card with her name on it, continued to run it and then pleaded with our other brother for funds from the proceeds account to pay off his debts.

    I have a professional designation which requires a great deal of scrupulousness from me in all financial dealings. My brother has clearly used his POA/and now executor powers inappropriately.

    I could insist that these amounts be deducted from his share of the estate. I'm also concerned that if I know of the irregularities and don't report them to my licensing professional organization, I could be in trouble for letting fellow executors behave badly.

    Since we're the only beneficiaries, I don't know of anyone else who could object to what has happened unless it's me.

    I think I'll have little more to do with my spendthrift brother after this. I hate the idea of spending money to get my own lawyer when I know my brother will never have the means to compensate me for what he took from my mother before and recently.

    Do you have any thoughts or must I just decide what I can swallow and move on?

    ReplyDelete
  89. Hello,

    Here is my situation. My father passed away lastyear. He left his ex wife as the Executrix. I have been left 5% of the estate . Now i am currently on ODSP. i was informed if this money (around 18 000) was placed in a trust fund, that i could withdraw up to 6000 a year without it affecting my disability cheque. Or if i purchase a vehicle or house an amount is exempt fir these purchase.

    But the money was not specified to go into a trust account in the will. So his ex wife is stating she has to put it directly into my chequing account. And that she wants to only give me 5000 a year so they wont touch it.
    This woman is not someone i want to deal with for the next 3 or 4 years of my life, as well i would like to be able to go a make a larger purchase in the future if i so choose with out having to first discuss this with her.


    1. Can i request this money be put into a trust fund?
    2. Can she refuse as the executrix?
    3. Can she choose to only give me said amount of money each year?

    ReplyDelete
    Replies
    1. If she puts the money into your account, which I agree she has to do, what makes her think she gets any say in how you deal with it? She'll deposit it, and her job as executor is over. From then on, it's your money, and she's done.

      Under ODSP, you can receive the first $5000 without any impact on your benefits. You can shelter the rest by using it towards a residence or a motor vehicle.

      Lynne

      Delete
  90. My wifes mom passed 3 years ago.
    My wife's three siblings are executors for her mothers estate. A mutual fun was sold and the cash distributed to beneficiers. The home property include. 50 acres and an old house, their is a person living in the house who is not a beneficiay or a relative and does not pay rent. The utilities, heat and Gas are sub sized by one of the executors paying them from estate funds.
    The house and land have been put up for sale at a price twice that of comparable properties and the appraised price.
    There is an additional but separate piece of land which has not been put up for sale. The executors are speculationing that the properties will double in price in years to come. Question can executors speculate with the estate like this. Also can they subsidize the living expenses of the person living the family home,

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  91. hello, My Sister and brother are co executers of my mother's estate, my brother and sister have not been civil to one another for years previous. They now can't agree on some costs to the will and are unwilling to talk to each other or give the lawyer directions, in fact the lawyer has written both of them a letter asking them to come to an agreement and forward instructions. It has been a few years since my mothers passing and both my brother and sister are extremley stubborn people. I am a benificiary and really need the inheritence. Is there anything I can do to get the process moving forward?

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  92. Hi. My father passed away in 2006 and made my stepmother the executor of his will. The will has never been executed. I am the eldest and biological son of my father. Is there a limitation or expiry date on the will in manitoba. I am in the midst of asking for a copy of the will and maybe greeted by refusal and if so is she breaking the law.

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    1. Usually when someone says that a will hasn't been executed, they mean it hasn't ever been signed. However, I don't think that's what you mean, judging by the rest of the question. I think you mean that your stepmother has never probated the will or done anything to deal with the estate.

      The will does not expire. There is no expiry date and neither is there any hard-and-fast limitation date on how long an executor has to file for probate. However, we do have "the executor's year", a common law rule that says an uncomplicated estate should be wound up by the executor within a year.

      It's possible that your stepmother didn't take any steps to distribute the estate because your father left everything to her. Or, their assets might all have been joint assets so that there was nothing actually in the estate.

      Assuming that you were supposed to get something under the will and your stepmother doesn't have a good reason for not giving it to you (and after 7 years it would have to be one heck of a good reason) there would be consequences for her. Your reference to "breaking the law" sounds to me like a criminal law term, and the criminal law is rarely used in the context of estates unless someone has stolen something.

      Most likely the civil courts would be involved. Your stepmother could be removed as executor, or could be ordered by a judge to carry out certain tasks by a certain time, such as applying for probate within 30 days.

      If her failure to distribute assets to you that you were supposed to get under the will has cost you financially, there will also be repercussions for that. For example, if she was supposed to give you a sum of money so that you lost out on the interest on that money for the last 7 years, she would more than likely be ordered by the court to pay that to you from her own pocket.

      Getting a copy of the will is the best place to start, and I see you have already taken that step. That should answer a lot of your questions.

      Lynne

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  93. Hi,

    I am the executor of my parents estate as they both passed away in 2012.

    The estate is to split evenly between the 3 children. I issued a preliminary cheque last year to each one of us for more than $50K with the balance to be paid out when the estate is finalized with 2012 tax returns.

    For some reason one of my siblings has not cashed the cheque despite both myself and my sister asking him to do it several times. He definitely needs the money. I would like to wrap up the estate in the next few months. What are my options to move this along if he will not cash the cheque(s).

    Great forum, Thanks

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    Replies
    1. Interesting question. I don't think anyone has ever asked me this before!

      I'm not clear on whether he is refusing to be a beneficiary, or whether he is just taking issue with the form of payment. Does he have a bank account into which he can deposit the cheque? If not, perhaps you could take back the cheque and use some other form of payment.

      Is he giving a logical reason for his failure to cash the cheque?

      If he is refusing to accept any money from the estate no matter what, perhaps he would be willing to sign a waiver, or even a direction to pay?

      With a waiver, he'd basically be saying that he is not participating in the estate in any way, and you as executor would treat his share in accordance with the will as if he had died before your parents.

      With a direction to pay, he would be saying that he is a beneficiary, but rather than paying his share to him, he'd like you to pay it to someone else. He can't do this if he is in bankruptcy, but otherwise he can.

      Sooner or later that cheque is going to be stale-dated and you'll have to start all over, so do your best to find out his objection and see if there is a way around it.

      Lynne

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  94. Hi Lynn,

    My partners father passed away a few days ago and we are both very new to how everything should be handled.

    He did not have a will. His only other relative that we know of is his son, my partner.

    He owned a vehicle that is paid off and a motorcycle that still has money owing on it.

    We were given the run around about a death certificate and have little funds to have him moved and buried. We are at a loss as of what we need to do exactly.

    My partners mother has told my partner to go to a lawyer, a cost we can not afford.

    His father owes roughly 20,000 in credit card debt, 600$ to a hydro bill and 7,000$ to his motorcycle. He rented and we are lucky he did not owe to his landlord.

    My question is..What do we do in general?

    Take care of all the bills..is my partner responsible for all the debt? Can the vehicles be transferred into my partners name?

    Any advice is advice we will take.

    Very appreciated.

    Sincerely,

    Two unsure people

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    Replies
    1. No, your partner is not responsible for his father's debts, but neither can he take the vehicles when there are debts unpaid. Whatever assets his father owned will be used to pay off the debts to the extent that is possible. It sounds as if the motorcycle will probably go back to the place that financed it. The credit cards and hydro are probably out of luck.

      I'm not sure what is going on with "getting him moved and buried". If his wife is alive, and no executor has been appointed by will, she'd be his next of kin and should arrange the funeral.

      I can't see why you'd need a lawyer for that.

      If his wife is going to apply to be the administrator of the estate, she can apply for a CPP death benefit, which will help a bit with the cost of a funeral.

      Lynn

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  95. My spouses mother recently passed leaving a small farm she has owned since 1959 of 15 acres to the 4 children equally. One of the children is the executor. The executor transferred the property into her name and has received and accepted an offer to purchase for the estate. We have a professional appraisal on the property that was done immediately after the passing of his mom. It turns out the property will sell for less than the appraisal due to some previously undiscovered deficiencies of the land. We have been told this will trigger a capital loss for the executor upon completion of the sale. This seemed unusual to us but we have no reason to think anything underhanded will be done at this date. Is the practice of transferring the estate into the executors name usual and assuming the capital loss can be triggered in this manner can the executor claim the capital loss to their sole benefit on their personal taxes? It would seem the substantial capital loss should be "shared" to the estate pool but are unsure. Is the transfer of the property and subsequent benefits of the capital loss accruing to the executor acceptable in an equally divided estate? It all seems very odd but it may be correct and we don't want to taint the family with an unwarranted questioning of this transfer. The executor is not easy to talk to and is getting extensive legal and accounting advice through the estate expense. We do want to insist on an equitable distribution to all parties but not to the point of hurting anyone. It just seems the transfer to get a capital loss benefit is unusual in an fairly straight forward estate consisting only of the property. Your thoughts would be appreciated.

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    1. When an executor sells an estate property, the property is transferred into the name of the executor. But understand that this is not the executor's personal name, it's their name as executor. The capital loss that is being talked about is for the estate. It goes on the estate's taxes, not the executor's personal taxes.

      Lynne

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  96. What is the procedure for a widow to follow when she wants to gift her home and property to her son. i.e. sell it to him for $1.00. Is this legal and possible? What is required?

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    1. Yes, it is legal and it's possible. There will have to be documents filed at the land titles registry, and possibly fees to pay. You say you are a widow, so I hope that you have already taken your husband's name off the property (assuming your home was jointly owned). You would probably be best off to consult a lawyer who deals quite a bit in real estate, who will search the title to rule out any surprises, and advise you on how to proceed.

      If you were my client, I'd also be talking about your financial position in terms of whether you can afford to do this, where you are going to live etc. I would also cover some of the contingencies that people pretend can't happen to them, such as your son getting divorced, or any tax surprises hiding around the corner.

      Lynne

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  97. Hi Lynne
    I have a few questions. My grandfather died last year his will States that his house be sold and split equally between his 3 daughters and 4 of his grandchildren. My aunt is the executor. I don't trust her to be blunt. She has been hey closed mouthed about everything and yesterday mailed paperwork for me to sign stating I.would receive about 12,000. His house sold for 225,000. I just don't understand. He did not have large debt. How do I go about finding out the breakdown of his estate? Do I have a right to see what every person received? I know whey grandchild named in the will received the same notice. What do I do? Just sign n say whatever?

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    1. There are an awful lot of variables here. A lot depends on what else was in the estate. If the house was really the only asset, then all of the debts and expenses would have to be paid first before the beneficiaries get anything. He may not have had large debt, but don't forget that a funeral had to be bought, income taxes had to be done and paid, the executor is likely being paid, as well as probate fees, legal fees and accounting fees. If the house was the only asset, all that had to come out of the sale proceeds.

      If she is asking you to sign a release, then this reduction in the estate should be explained in the accompanying documents, but obviously it's not.

      If there were other assets in the estate of which you are not a beneficiary, then you are not what is called a residuary beneficiary. If that's the case, you are not entitled to a full accounting of who got what.

      Have you considered taking your paperwork to a local wills and estates lawyer before you sign it? I'm not in favour of people just signing and saying whatever, when their gut tells them something is out of place. It wouldn't cost much just to have a consultation during which the lawyer could determine exactly what's in the estate and what your relationship to the estate really is.

      Lynne

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  98. hello, my father passed away 6 weeks ago. My sister and I are executors and beneficiary's. 18 yrs ago my sister bought a house for 68k. 3 yrs later she owed taxes of 6k and 4-5 mortgage payments plus other depts. My father paid 66500, paid off the mortgage and the taxes and depts., but had the property transferred to his name. My sister has since lived in the house like a rental, no improvements , no rent paid, no taxes paid for the last 15yrs. The will states 50/50 me and her, my father owned the family home, the family farm and "her" house. We have not discussed yet but the value of the estate is around 800k after capital gains tax(on "her"house) 100K, she expects to keep 100% OF HER HOUSE, 50% OF FAMILY FARM AND 50% FAMILY HOME. how do you recommend I handle this. thank you

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    1. I'm not going to make any recommendations, but I will give you a summary of what the law says should happen. Her expectations are totally unrealistic. It was a mistake on your father's part to make her an executor when she is clearly in a conflict of interest position, but no doubt he didn't see it that way. He was likely trying to treat you equally.

      Any funds that were advanced to her are considered an advance on her inheritance. They make up part of her half of the estate. In other words, she has already inherited $66,500 plus the amount of the mortgage, the taxes and the debts. If she keeps the house, she is also getting the benefit of 15 years' worth of property tax, which the estate will have to pay. So, all of that comes off her share first.

      As an executor, she must act in the best interest of the estate. I doubt she can do that. The estate lawyer cannot under any circumstances take her instructions as a beneficiary, as that is in conflict with her duty as an executor.

      I hope you two can resolve this amicably, but it will be tough, as that is a lot of money that she just isn't entitled to get.

      Lynne

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  99. my father in law passed 6 months ago my wife is co executor of the estate with her sister. The sister was put on the bank account since the father was unable to get to the bank any more. Can the sister do as she pleases with whats in the bank, she will not show my wife the bank statement from the time the father died, only a hand written statement, where she shows what was there the day he died and what shes paid out can my wife obtain a statement I am afraid that one of the other siblings may contest the estate and my wife be on the hook for money gone missing, since the father has passed the sister has purchased several expenceve items and I know she is cash strapped

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    1. This is another case where a parent made a bad mistake by putting one of the kids on a bank account when what was needed was just a power of attorney. The parent's second mistake was putting the same child on the will as an executor. Parents really don't see these things very clearly.

      The account in question is supposed to be part of the estate, but you will find contradictory information from the bank and the lawyer. Banks are extremely slow to respond to changes in the law, and many are still paying out intergenerational joint accounts to the child whose name was put on to help with banking.

      What is supposed to happen is that the account is held in trust for the estate. It's unfortunate that banks still mess this up, but it will continue to be this way until one of the banks ends up being sued, so we have to deal with it the way it is.

      Your wife might consider hiring a lawyer of her own to advise her personally. She should ask about how to hold the sister personally liable for removing estate funds, if that is what happened. It does seem odd that she won't show a statement to the other executor.

      This likely won't get settled in a nice way, mostly because both of them are executors.

      Lynne

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  100. My grandmother passed away recently leaving her only living son (my uncle) as executor. Beneficiaries are my uncle 50% and my brother 25% and myself 25%.
    My uncle lives in the states and we live in Canada. I have been reading about tax issues as well as bond issues.
    Can you share some more info as to what we might face with him not being Canadian like the rest of us (my grandmother included).
    Also he threw out a lot of her stuff, more then we could ever even know about. Can he throw her things out without even consulting us?
    Since he lives a country away does the estate pay for his flights back and forth to handle this matter.
    I am worried he doesn't know what he is in for.

    ReplyDelete
    Replies
    1. Yes, an executor can throw away things without consulting the beneficiaries, but he should be careful about that. If he throws away things that have monetary value, he might have to replace those items out of his own money.

      Has he actually applied for the probate yet? If so, he will have run into the bonding issue already. The bond is a kind of insurance policy that is meant to ensure that the executor does the job right. If he does not, he may forfeit the money he put up to get the bond.

      Because your grandmother chose an executor who lives in another country, yes the estate will have to bear the costs of his flights and accommodations.

      An option that might suit both you and your uncle is for him to hire a trust company to do the estate work for him. He would still be the executor and call the shots, but he wouldn't have to keep flying back and forth. This would be easier on him and cheaper for the estate. And you would have the peace of mind that things are being done right.

      Lynne

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  101. The lawyer drafting my will is encouraging me to have a several back up executors - my daughter would be the first - if unable to, her father, then my long time partner - and now someone of a younger generation. I assume 1.) I should have the permission of anyone I name and 2.) that it would be appropriate to name a fee to compensate those who are not beneficiaries for the task. Is this right?

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    1. I don't know that you need "several" back-up executors, but you do need at least one. If this is a problem, consider naming a trust company as your executor, then you won't have to worry about who's going to be in charge.

      Yes it is definitely a good idea to have the consent of the person you want to name as executor. You don't have to give them the will, but tell them where to find the original.

      Yes, also a good idea to discuss compensation. You don't have to pay the executor. You can state that there is to be no pay. Most people simply state a percentage amount.

      I notice you mention pay for "those who are not beneficiaries". Make sure you mention compensation (or lack of it) for ALL executors, whether or not they are beneficiaries.

      Lynne

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  102. Hi Lynne,

    My brother and I are both executors of my mom's will. He decided to find a lawyer for us since I had suffered double losses. I have been shut out from being included except to sign papers. When I questioned why I was always second to sign papers (never signing at the same time) I was told by the lawyer that my brother hired him,. therefore he works for my brother. Now that we are at the end of the process I am being shocked by seeing that the lawyer costs are nearly $80,000 on an $800,000 estate. Do I have any legal recourse on these fees or am I screwed?

    Thanks!

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  103. Hello,
    My father recently died. My brother and I were estranged from him. Due to our own choosing we have not spoken in years. We are adults, so not considered dependent children. Since we did not have a relationship with our father, he left his estate to his current wife. Do we have any claim to his estate?

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    1. From what you have said here, I don't see any reason why you would be entitled to anything.

      Lynne

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    2. I have a question Lynne:

      My brother living in Nanimo BC was selected as Executor in 2009 along with my Sister who lived in Victoria BC, my father alos livedd there. When my father died, they were all in the same place. My brother took a job working in grand prairie alberta, while residing in Nanaimo BC. The estate has been paying his air fare to travel from Grans Prairie to Victoria to meet with lawyers. My sister moved to Calgary before anything was finished. My brother has since moved to Grand Prairie. Both have left the province of BC on their own by choice before their duties as Executors were completed. Does the estate owe to pay for either of them to travel to meet with the lawyer in Victoria since they chose to move themselves out of the province.

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  104. hi Lynne
    My brothers and I have have lost both our parents.Our mother and father were divorced so we lived with our mother in the family home.5 years ago our mother passed away and she left a family friend as executor as my brother and I were only 13 and 15.Our father moved back in to care for us but last month he passed away.We are now 18 and 20 and the executor wants to charge us $1600 a month to live in our own home we inherited is this legal

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    1. Hi Joe,
      The first thing you need clarified is whether the home is being held in trust. If it is, you need to know the terms of the trust as set out in the will. The trust should address how long the title is to be held, whether any money is held to pay for maintenance, whether you two are expected to pay expenses, etc. I personally have never seen a trust in which the beneficiaries have been asked to pay rent, but it's not impossible.

      I would suggest that you get a copy of the will. Assuming that you are the residuary beneficiaries of the estate, you are entitled to have a copy. If the executor won't give you one, go to the nearest courthouse and do a search under your mother's name for probate papers (this costs very little).

      If the property is not being held in trust, there is no reason why it cannot either be transferred directly to you both (assuming 18 is the age of majority in your province) or sold and the money divided between you.

      You need to start with obtaining more information. Once you get a copy of the will, take it to a lawyer who does a lot of work in wills and estates. Find out exactly what you have inherited and whether there are any trust provisions in place. Seeing a lawyer doesn't necessarily mean that you have to start a lawsuit. And if the executor is acting improperly, it will certainly be cheaper than paying $1600 a month.

      Best of luck! You sound like one smart cookie.

      Lynne

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  105. Hello Lynne,
    My sister is the executor & trustee of my Mother's estate. My Mom passed away in July of 2012. My Father is the sole beneficiary of my mother's small estate (approx. $12K). The instructions were that the funds would pay for my Father's funeral. He physically would not receive the money until his funeral expenses were paid for. My sister, who is my Father's step daughter for 44 years, sent my father a letter 4 months ago saying she wants nothing to do with him because of past events she chooses to judge him on. My sister confessed to me yesterday that the estate has been completed, & she is refusing to make payment to my Dad bc she says he's a liar. Although my Mother's will is VERY clear, & she has verbally told everyone in the family what her wishes are. Can my sister legally do this? What are the steps we can take to ensure she has not stolen the money & that she pays out the estate as instructed by my Mother. I desperately need your advise as this has torn our family apart & my Mother is not resting in peace. I have retained a lawyer. Thank you

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    1. Since you have retained a lawyer to help you, I doubt there is anything I could say that would add to the advice you are receiving.

      Lynne

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  106. Hi Lynne,

    I am in desperate need of legal advice, as I am one of those who fall in between the cracks of just being above the family income cutoff for legal aid and not being able to afford legal representation.

    My eldest brothers are co-Executors of my mother's estate. There are 5 of us siblings. I am youngest by about 10 years. I have a history of suffering mental illness--depression and anxiety--and was post traumatic stress disorder caused in part by my abusive alcoholic mother. I forgave her in later years and she tried to compensate by helping me financially as I struggled to get better.

    When the Executors gained access to my mother's finances after she passed away, they deducted about $70,000 from my share. They did this despite not having any signed promissory note and the directive of the will was to split everything equally 5 ways. There is no mention in the will of me having to repay any debt.

    When I eventually protested this, supported by my two, non-executor siblings, I gave them a choice of offering a settlement, mediation or litigation. They responded by offering a settlement that amounted to just over $10,000. I replied that it was not acceptable and they replied by offering another 15K but also attached to that offer, a new executor fee.

    Initially, they verbally told us they would not be collecting a fee from family. That went up to 1%, which we accepted as fair. After the first settlement offer, the fee was raised to 2%. After the second offer, the fee was raised to 3.92%. This effectively cushioned the Executors from paying for any of the settlement and actually increased their share so the 15K only translated to 6k for me.

    From reading on your excellent and helpful website, they have made a number of serious errors:
    1. Changing or reinterpreting the will
    2. Failing to follow the direction of the will
    3.Failure to handle the "Even Handed Rule" by: a) Not giving me what I was entitled to
    b) fluctuating the executor fee to benefit two beneficiaries (who happen to be themselves) while causing an unfair burden to two others, who would receive less because of the "settlemeent"
    c) I have a number of e-mails to document they have not been impartial--they have made a judgement call that I should receive less.

    Despite my research, I need affirmation that my position has validity. The case would be heard in the GTA and my understanding is that mandatory mediation is the first step. My hope is if I can get them there, we can find assisted resolution.

    How can I do this myself, or with as little expense as possible?

    Thank You so much for taking the time to build this website and blog that has been an invaluable tool for me.

    Sincerely,

    Richard

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  107. thanks for all the information as it is helpful.
    Here is my Question my father in law passed away last year. My husband and sister in law are co-executors. She refuses to talk your discuss anything with my husband. My husband hired a lawyer. Her job is to do the taxes. She will not give information about taxes and would not give name of accountant. We found out from our lawyer that a T1 needed to be signed by both executors. My husband did not sign for his fathers taxes last year and this year. The lawyer now has doubts that they were ever filed as the accountant is not very forthcoming. Can charges be laid against her for not having my husband sign his part.

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    1. "Charges" laid against someone usually refers to criminal charges. They are not the usual remedy against executors, but sometimes the criminal courts are involved when an executor has stolen funds, perpetrated a fraud, or otherwise behaved in a criminal matter. In my opinion, failing to file the taxes for the estate does not amount to a criminal matter.

      I'm often asked if executors can be "charged" and the question makes me wonder. After all, calling the police on someone is pretty extreme. What does the person asking the question really want? Do they want to get the taxes filed and the estate wound up? Or are they really more interested in punishing the executor for current or past perceived wrongs?

      If what you really want is to get the taxes filed, then forget about charges. Stick with the civil remedies. I don't know what it means when you say the accountant is not forthcoming; the question he is being asked is simple: were the tax returns filed? Your husband is an executor and is entitled to the information. This means he may use the courts to get it, if he has no other recourse. I'm sure the accountant's memory will improve if he realizes he will have to tell a judge if he doesn't tell your husband. Your options - all of which would come via a court (not a criminal court) - include an order that the taxes be filed by a certain date, an order requiring your sis-in-law to produce copies of what she has done, or an order removing her from her job as executor.

      Lynne

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  108. It seems executors don't have to wait for the person to die before they can take hold of a dying persons estate, to prevent someone from inheriting it.

    Both my brother and I were executors for my mother's Will. Both were POA.

    I am on Disability and my mother wanted to make sure that I got my inheritance, (in case my brother contested the Will) so as long as I was POA, my name alone was added to all bank assets for purposes of POA and to have right of survivorship, which she cleared with each bank first, since as POA the money would not be legally mine until she died.

    My brother found out he was only to receive a few thousand. My brother and his daughter changed the POA to remove me, after taking my mother to a Motel after her cancer surgery, when he found out she might have only 4 weeks to live.

    He convinced the lawyer I was too mentally incompetent to own the house, and that it should go to his daughter, and convinced 3 banks to release over $100,000 to him (over $30,000 using the old POA before my mother was even out of the hospital), even though they knew my mother was dying and I was about to inherit the monies and the new POA, a week later, was only a few hours old, which should have been a red flag to the banks.

    The new lawyer took all my mother's pension money convincing her he could get her money back, but even though he promised to pay it back, my brother now claims he's broke, while claiming to be President and CEO of a multi-million dollar company. A lawyer wants $2,000 just to file a notice with the court that he failed to provide his financial records, which is my food budget for the year.My brother also promised to pay thousands to my mother's lawyer, and I was told since my brother said 'pay' not 'reimburse' the lawyer would go after him, but someone else said no the lawyer intended to go after your dying mother for the money.

    The lawyer should have told her, you'll never see a dime, (and he'll just claim bankruptcy once you're dead) just save what little you can for your daughter.

    The police told me it would take 1 or 2 years, it's been over 3.

    Legal Aid won't help me.

    So it seems victims of crimes are NOT entitled to legal help.

    While the banks told my mother that her money was insured, the failed to tell her it wasn't insured against theft or fraud, you can only sue the banks for the money, if my brother is convicted of theft, but since I'm on Disability, I won't be able to afford a lawyer, so both my brother and the banks get away, while I'm left to pay my mother's taxes because there is no money in the estate.

    I guess someone needs to make a new law, so that victims of crimes are also entitled to legal help not just the people who committed the crimes. The lawyers could make a killing.

    Only rich people can afford justice, because only rich people can afford lawyers.

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  109. Hi. I have a question that's been nagging at me for some time. My mother is 89 and has been recently diagnosed with dementia and will be going to a nursing home. My sister has always lived with her in an apartment, is working and they have joint bank accounts. My mother has nothing to leave expect a small life insurance policy and some personal belongings and she has listed me as the executor of her will. My sister is the beneficiary of the life insurance policy. I'm trying to figure out how the funeral costs will be paid. Mum has no bank account in her own name. If my sister decides not to use the life insurance to pay for the funeral costs, will I as executor be responsible for them? I'd appreciate any insight you can give me.

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    1. No, as executor you will not be personally liable for them. As a son or daughter, that's up to you.

      Don't forget that you will be able to apply for the CPP death benefit (f your mother is eligible). It isn't a lot - only $2500 - but it helps.

      I would be more likely to look toward the joint bank account than the insurance policy. The law says that inter-generational bank accounts like this one belong to the estate, unless there is clear evidence from your mother that she intends for your sister to inherit it.

      Lynne

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    2. Thanks for getting back to me. I appreciate your help.

      Delete
  110. My situation should be pretty easy. I am the executor of my fathers estate and sole beneficiary. Of course having not dealt with a situation like this before I am afraid I may have made a few mistakes. I am requesting to not have the estate go through probate, he only had one thing that listed estate and not me as a beneficiary. He had no debts. The bank has froze his accounts until we find out if probate will be needed. I have paid for the entire funeral costs from my savings, which the bank later told me they would have covered (the bank lady idoes not help at all and only acts on my direction not offering any advice). I am also taking over paying house bills out of my own money (since accounts are frozen). My question is that if the bank tells me I do require probate can I request to be reimbursed the costs I have spent out of my own pocket and have that money come from estate funds instead to try and lower the amount that will go through probate?

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    Replies
    1. If probate is required, you will have to declare the amount that was in the account (the one that doesn't name you as beneficiary) on the date of death. You can't raise or lessen it - whatever was in there on the day your father passed away is the amount that has to be shown. Keep in mind though, on that same inventory you will also show whatever debts existed on that day. This includes funeral expenses. So although you can't reduce the gross amount of the estate, you can reduce the net.

      Who is deciding whether probate is needed? I assume this is being done by the bank's legal department. If there was only one asset in the estate and it is not of a very large amount, you can ask the bank to let you sign an indemnity rather than go through probate. This is really not all that uncommon, though I find that banks in general don't really offer it, as they would rather have probate. If the amount in the account is high, they will never agree to an indemnity instead.

      The question I see jumping out at me is your father's house. The house is an asset. I suspect that what has happened is that your father put your name on the title as a joint owner, with the intention of bypassing probate. This may be what is holding things up. The law no longer says that joint ownership between a parent and a child automatically means the child gets the house. Now the law says that an inter-generational title like this means the house must be part of the estate assets until it can be determined what your father intended in terms of ownership of the house.

      My guess is that the legal department will look at these facts, together with the fact that you are your father's sole beneficiary. Are you the only child? If you are, most likely this will resolve itself in your favour because there won't be any other potential beneficiaries who could be affected.

      There's more going on here than I think you realize. If the bank insists on you getting probate, make sure you understand exactly why - which asset is the one in question.

      Lynne

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    2. It is the bank submitting forms to request to not go through probate. The funds in question are GIC's but do total an amount of $41,000 and a personal banking account.He had a number of other things that all had me named as beneficiary on them the bank just missed adding me to the one. I am realizing now after doing research that this is a high amount and the banks may not allow it. Where we do our investments (with sunlife) they do not require it until over $100,000 so I was not aware of this.

      Regarding the house I am told it will transfer from his name into my name and then to the new owner in the same day through his Lawyers trust account that should not go through the bank.

      I am an only child, he did have a will naming that I was to have all assets . He had nothing owing (owned house, car ect) except $136.00 which the bank did pay out of his account and cancelled credit card.

      Total of his estate the bank is holding is $55,000. I have spent $11,000 to the funeral home and will be paying house bills. Do I pay probate on the gross amount or would it be better for me to argue the fees that should have been paid from the estate instead of my personal funds?

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    3. This comment has been removed by a blog administrator.

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    4. The amount shown on the probate will be the same, whether you paid it personally or whether it hasn't been paid at all. The probate document will not concern itself with payment of the expenses; it just says what they were on the date of death. Yes, the expenses should have been paid from the estate, but when it comes right down to it, you're getting the whole estate so it really comes from you anyway. Your inheritance will be tax-free so there is no real advantage to separating reimbursement of the funeral bill from receipt of the assets. You're doing just fine with this estate. You seem to have a good handle on it.

      Lynne

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  111. Lynne,
    My father has left a percentage of his estate to his grandchildren, not naming each specifically in his will. My son declared bankruptcy before Dad passed away and has not been discharged yet. He has told his trustee that he is a beneficiary, the will is still in probate. The trustee has requested a copy of the will. Does the trustee need a copy of the will?

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    Replies
    1. Yes. Anything passing to your son from the estate must be paid to the trustee in bankruptcy, and they must be able to see the will to ensure that the right steps are taken and the right assets are transferred. If less than the whole inheritance is needed to pay off creditors, the balance will be returned to your son.

      Lynne

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  112. My aunt died recently and her will doesn't mention anything in writing about her house. Approx 2 months ago she said in front of the executor of the will and a man from her bank that she wanted me to have the house. She said this numerous times. She told all her friends this and other family members. The only beneficiaries are myself my siblings and another aunt (she has 50% the remaining 50% split equally between us siblings). All are in agreement I can have the house, but the executor says no it wasn't written down. Is this right ? I assume it is but just checking.

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    Replies
    1. My answer to this question was really long, so I made it into a new blog post dated July 26/14. Here is the link: http://estatelawcanada.blogspot.ca/2014/07/she-told-me-id-inherit-house-but-didnt.html

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    2. Thanks for that info, She wasn't actually living in the house when she died, and it doesn't make up a big part of her estate.There are quite a few investments so all other parties will still inherit a nice sum. The other parties all live out of the country so the contents are not an issue getting a sofa onto international flights not a good idea !! Will look into the process you suggested thank you very much.

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    3. Just an update...my family is normal after all !! Even though they will inherit a VERY large sum of money some of them have decided they want it all and then some so the house is not going to me after all even though it is not a big part of the estate.The annoying part is they quote they want to follow the will knowing full well she was changing it just before she dropped dead suddenly. They never talked to her or had contact for years and I was there every day for her. Now they are moaning the will is not being sorted quick enough for their liking !!! Money does make some people VERY greedy indeed. Oh well you live and learn even family can be two faced sometimes.

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    4. As hard as it may be to admit about one's own family, disputes - some larger than others - are the norm.

      Lynne

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  113. This is very nice blog and given great a information about it.

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  114. My mother died in 2011. My sister is the executor. She is also a hoarder. She claims that item's of mom's were lost in hurricane damage but given that she is a hoarder and often a liar, I don't believe the inventory she has provided Do I have any recourse? Isn't 3 years a long time to wait to have a will executed? Mom had no property or car and only about $20,000 . My sister willl not return phone calls or reply to emails or letters.

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    1. Yes, three years is a long time to wait, particularly since preparing the inventory is one of the earliest tasks done on an estate. It sounds as if your sister is simply not up to the task.

      This is one of those situations in which you are going to have to ask yourself how far you're prepared to go with this. What exactly do you want, and how far will you go to get it?

      If the inventory itself is the issue, are you willing to show up at the house and suggest that you help her prepare a better, more thorough inventory because you realize what a huge job it is? Or would you prefer to stick to legal recourse?

      If you decide that you want to stick with legal recourse, you can ask the court to compel the executor to prepare a better inventory within a certain time deadline. But - and this is important - it costs money to enforce legal rights through the courts and you would very quickly eat up whatever you would have inherited. You also have to ask yourself whether she is actually going to be able to do any better.

      Based on the long delay, and the fact that you are unhappy with the inventory, you may decide to ask the court to remove your sister as executor. If so, are you prepared for that fight, and are you prepared to step in and take over as executor?

      Given the small amount in the estate and the fact that your sister appears to be struggling with the executor's job, your best recourse just might be to step up and tell her you'll help her.

      Lynne

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  115. My father passed away about 5 months ago. I was left as the executor of the will and my two half brothers are residual beneficiaries as well as myself. He left a lump sum for his common-law girlfriend, she has now put a claim for 100% of the estate. I hired a lawyer to look after this from day 1, Is there anyway she would walk away with more than half? I mean they had no children together, and she was in and out of the home numerous times in the last 6 years, should i get a new lawyer? this one seems scared.

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    1. The rights of common law spouses vary widely across the country, but I'll assume that you live in one of the provinces in which common laws have the right to claim as dependents of the estate. That only makes sense, since the girlfriend has actually made a claim.

      Could she walk away with more than half? Yes. The issue of children is not relevant. Every province in Canada has some version of what is known as dependent relief law. This law says that if a dependent is not adequately provided for under the will, he or she automatically has the right to make a claim for a greater share of the estate. There is no equation or percentage specified. You are working with "adequately provided for" as your guideline.

      If the girlfriend can persuade the judge that the inheritance she received under the estate is not adequate for her support, then yes she will be awarded more.

      If you don't have confidence in your lawyer, by all means hire someone else. But don't be fooled by a pitbull personality. There is no jury to impress and judges can get pretty impatient with lawyers who put on a big show just to look tough to the clients.

      Lynne

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  116. Hello I am sending my request from Saskatchewan...
    Point form
    1. Mom & Dad
    2. Mom passed away
    3. Dad remarried
    4. did new will up with new wife shortly after married
    5. went to lawyer to do up another will within last couple of months - our understanding is new wife was fully aware of his requests
    6. Dad passed before he SIGNED the revised will
    7. After passing - executrix/new wife went to lawyers to sort things out and new wife said she would honor his wishes
    8. since then - we have been advised by the lawyer that she has gotten her own lawyer - and he wants all documentation - she is not going to sign anything....

    Would the "unsigned" will prevail based on its intent - or would the signed will be the one recognized?

    Could you give some more insight - thought on this type of situation. New wife came into relationship with debt

    Any pertinent information you can give would be greatly appreciated.

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  117. How can I be sure that the trustee is being honest about the amount of the estate when I as the beneficiary do not no how much I am going to inherit?

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  118. My father passed away in 1990 - my mother passed away in 2010 - I was named executor on both wills - my mother had one property transferred to her name from my father's estate and recorded in the registry office - there is one property that I need to sell ASAP (it's not worth much) but it is still in my father's name - do I need to get permission from all beneficiaries and register an executor deed to be able to deed the land to the seller

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  119. My Grandma passed away this past march and it was no surprise that there was a lot of greed from the other side of the family. One concern we have is how much the lawyer is spending on things that shouldnt cost much at all. A question i am hoping someone will be able to answer is...since i am an equal share holder on the will, do i have a right to ask for a financial statement of what hes spent the money on? thanks guys!

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    1. This is a yes and no answer. No, you don't have the right to ask the lawyer directly to justify his bill. The lawyer works for the executor, and he will only render his account to his client.

      However, as a beneficiary, you do have the right to approve - or not- the executor's accounting. Part of his accounting will include the amount he has spent on the lawyer's bill. You should definitely make sure that you see the lawyer's full bill at that time, for two reasons. One is that expenditures might, as you have mentioned, be extravagant. Recent case law in Canada has confirmed that when an executor has a lawyer spend money that really doesn't benefit the estate, the executor may be personally liable to repay that money.

      The second reason is to ensure that the executor is charging a fair fee for his executor compensation. If he has handed off many of his duties to the lawyer, then the executor shouldn't be charging for those tasks as well, as that would be double charging.

      Lynne

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  120. My mother passed away recently and her will stated that her estate was to be divided equally among her 3 daughters. She owned a home outright and though she lived in assisted living, she rented the upstairs of her duplex and one of her daughters lived in the downstairs unit who is also the executor. Do we have to sell the house immediately to settle the estate? We, her sisters don't want to necessarily force her to move but would like to keep it for a few years. Can we do this and is there something we need to do legally about the house?

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    1. If all of the beneficiaries agree, it is alright for her to live in the house and for the estate to keep it for, as you say, a few years. However, you absolutely MUST work out all the details first and put them in writing. It may seem cold to put it in writing when everyone is getting along, but trust me, things change over time.

      First of all, make sure that the title to the house is taken out of your mother's name and put into the name of the estate. This is essential for tax purposes.

      In your written agreement, cover such things as how long the executor can live there, how much rent she is to pay, payment of utilities, maintenance, property tax, and fire insurance. She may be assuming that she gets to live there "for free" but maintaining a house costs money and that money is coming directly from the pockets of the beneficiaries.

      Remember that every dollar that the estate pays is coming out of your pocket. This may seem ok right now but people do change their minds, so having it in writing will ensure that you can all carry on as a family once the arrangement ends.

      Lynne

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  121. Hi Lyn
    My friend has inherited a 750,000.00 and 550,000.00 with her brother on Oct 2012.
    her brothet smd het are the only benificarys.
    he died in August 2015 leaving his only daughter in his woll.
    the housevis stillnin the estate amd my friend used most if not all of the investments .
    Her niece is going to sue her , what should my friemd do now?

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  122. Hi Lyn
    I have a big problem. My father passed away on Oct 19th my brother and I are both named as executors. My brother has done everything behind my back he made appointments at the bank with my mother and will not tell me what was done with the money. I believe my brother may have been signed on with my mother as joint on the accounts which amounts to about 200 thousand. 4 days after my dad passed he made an appointment to see the notary with my mom without telling me. I made my own appointment the next day and the notary let me know that my brother was asking about being joint on the house owned jointly by my parents but now by my mother as my dads beneficiary. The notary also let me know that my brother had another appointment set up to get his name jointly on the house with my mother. My brother along with my mother have gone through the house and thrown out most of my dads stuff. My brother has also shredded most of my dads paper work including I would bet the loan to my brother who is a gambler. He has had my mother pay off his credit card debt for the third time, he lives at home and has for many years now my mother who is 90 will only listen to him as he as she says has always been there and they are like a couple. I would like to Know if I can stop this. I love my mom but right now she thinks my brother is right about everything and has even yelled at me when I showed up at the appointment with the notary that I wasn't supposed to know about. I think my brother is greedy and I am concerned that my dads stuff was just thrown out. As co executor on dads will can I go to the bank and ask what was done with my dads accounts. I am also co executor on my moms will but am concerned that she may change it. The whole idea for both she and my dad was that the 4 of us would split everything equally. I would bet my brother has convinced my mom that he will do what she has said but if he is joint on everything I believe that when she passes he will own everything that is joint and have no legal responsibility to share anything.

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    1. A co-executor is not entitled to deal with the estate without the knowledge and consent of the other executor. Yes, you have the same authority as he has in terms of your father's assets, so you can go to the bank or anywhere else your father had assets to get full information. Your options for dealing with your brother are limited, and I would say the most likely path for you is to go through the court to have your brother a) reveal all of his transactions to you and b) be removed as executor of your father's estate. If he has converted some of your father's assets (NOT your mother's) to his own name, you can ask the court to change that back, or have your brother repay it.

      Going forward, dealing with your mother's assets are going to be tougher because the law presumes that any adult, even one who is 90 years old, can make her own decisions however she wants to, whether her kids like those decisions or not.

      Keep in mind that when your mother passes away, if the house is in joint names between your mother and brother, that house is still in your mother's estate. He will no doubt try to bully you into believing he owns it by joint ownership on her decease, but that is not the case. You will still get your share of the estate. Same goes for joint bank accounts.

      The only way you could gain control of your mother's assets without her cooperation is to ask the court to appoint you as her trustee. Your brother would know about the court application and would most likely contest it, so that would get ugly.

      Lynne

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