Moderator: Global Moderator
What happens on death when you've been separated from your spouse for eons, but not divorced?
Many of you know people who have been separated from a spouse for years but who have never bothered to go through with the divorce. Sometimes I meet clients who tell me that they have been separated for 25 or 30 years or more without ever finalizing the divorce. When I ask why they have not simply signed the paperwork, I am usually told that "it makes no difference".
Perhaps it does not make a difference to your daily life right now. But does it make a difference when you pass away or if you develop an age-related dementia? Perhaps.
One way in which you or your estate might be affected by this lack of action is the existence of old documents that should have been updated years ago but never were. Let's face it, if you can't even get around to finalizing your divorce, you probably haven't bothered updating your will, Enduring Power of Attorney, or Healthcare Directive either. Are you okay with the ex you left 25 years ago inheriting a part of your estate? Does it suit you to have your ex making end-of-life or medical decisions for you? Do you know how the claims of a still-married spouse might impact a new partner in your life? If not, get going and update your documents.
Another reason that I've heard for not concluding a divorce is that it's "too much trouble". I mean, who wants to go through all of that fuss about dividing pensions and changing the title on the house and all that boring stuff? It will work itself out, right? Wrong. Those issues often continue to exist, but you've left the burden of figuring out your responsibilities on the shoulders of others. A divorce settlement would have covered things such as who would get a share of your company pension, who would keep the house, and who would maintain life insurance policies for the other.
Let's imagine that you meet someone and the two of you decide to become a couple. He or she is still married even though they've been separated for years. It's no big deal so you move in, assuming that one day it will all get figured out. The years go by and you don't think a lot about the silly details such as whose name is on what. Then one day your partner passes away and suddenly you realize that you have been left out in the cold. Your partner's ex was never taken off the title to the house, even though you and your partner lived there and paid for everything. Now you've been given two weeks to move out so that the ex can take the house and sell it. You also find out that you won't be getting anything from your partner's pension or life insurance because all of that is in the ex's name too!
A lot of people in that position will put up a legal fight, if they can afford to do so, and so begins another lengthy, expensive legal battle that could have been prevented.
Not every situation is as dire as the example I've given here. Some provinces have legislation that allows a common-law spouse to inherit even when living with someone who is legally married to another person. Not all do, though. And even if common-law status will cure some of the issues I've raised in my example, it won't overcome things such as a title held in the name of a third party.
If you have been separated for years and have no intention of reconciling with your ex, just get the paperwork done so that others around you won't have to tidy up your affairs for you after you pass away.
How much money do you receive if a loved one is killed in an accident?
This is a topic I don't think I've covered before on this blog, mostly because it involves a type of litigation that I typically send out to other lawyers. However, the question of how much money (we lawyers refer to the amount as "quantum") is involved is a relevant question to family members left behind.
Loved ones left behind might be struggling financially due to the loss of the deceased's income. A small business might be in danger of folding without the deceased there to do the work. There are many such situations in which the family of a person who died a "wrongful death" might consider taking legal action to recover some money. The potential amount of the lawsuit is an important factor for the simple reason that in any legal action you have to weigh the potential benefit against the potential cost.
Recently I read an article in w*w.advocatedaily.com in which an injury lawyer laid out the three sources of money that become available when someone is killed in an accident. See below to read the article ("Wrongful death Part 2"), which interviews Toronto lawyer Alison Burrison, The article is specific to Ontario so some of the material is going to be different in other provinces, but this should give you a good idea of where to start.
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Only 49 more states to go!
I-95 and I-75 will be jammed for the next month or so with druggies and deadbeats heading North out of Florida, because this is the first state in the union to require drug testing to receive welfare! Hooray for Florida ! In signing the new law, Republican Gov. Rick Scott said, "If Floridians want welfare, they better make sure they are drug-free."
Applicants must pay for the drug test, but are reimbursed if they test drug-free. Applicants who test positive for illicit substances, won't be eligible for the funds for a year, or until they undergo treatment. Those who fail a second time will be banned from receiving funds for three years! Naturally, a few people are crying this is unconstitutional.
How is this unconstitutional? It's a legal requirement that every person applying for a job has to pass drug tests in order to get the job, why not those who receive welfare?
Forward this if you agree! Let's get welfare back to the ones who need it, not to those who won't get a job.
---- No Borders, No Language, No Culture = No County
Why is abuse of the estate legal system allowed to continue?
Lynne Butler-Lawyer East Coast Canada
I received an email recently from a reader who expressed sadness and frustration over the administration of her parents' estates in the hands of her siblings. This reader touched on a topic that is of great concern to me and to many others: the abuse of the estate system. Read on to see the reader's note and my comments.
"Two of my sisters approached my 92 year old mother to become Executors after my father passed away and upon my mother's passing have since smiled and waved passed every so called "check point" in the legal estate system. I've watched incredulously as they've come to the end of two years, no release signed by beneficiaries, no passing of accounts, keeping everyone at arms length..and having done whatever they want regardless of our requests. I read over and over how commonplace this is and yet, the rules and regulations have not tightened. Why is this allowed to continue?
In our case, it's out and out craziness, and, not at all the intent of our hard working, hard sacrificing, immigrant parents...not, at all. This has done irreparable damage to the next generation."
In theory, it's not allowed to continue. All of the things you've mentioned are covered by our existing laws. We have a Trustee Act in every province and territory that regulates how executors are allowed to behave. We have Rules of Court that describe how estate processes work. We have courts that hold people to their roles. We have criminal laws that punish people who engage in fraud and theft.
The problem is not so much in the law as it is in the enforcement of it. It's a complex issue. When the beneficiary of an estate sees a problem with an estate, he or she has to proceed through the civil court system to get a judge to enforce the law. This requires a number of things, such as: knowledge of the system, awareness of the rights of beneficiaries, competent lawyers, affordable legal advice, informed judges, accessible courts, and the willingness of individuals to engage in legal hostilities with family members. Many of these are beyond the reach of average Canadians. The cost alone makes enforcement of rights inaccessible for many folks, even if they knew how to go about it.
You're right that financial abuse of estates is widespread. There are several other factors that have led to this perfect storm of rogue executors and beneficiaries. One of the main reasons for the ugly state of current affairs is that estate laws were for the most part created almost two centuries ago. Society was a lot different in the 1800s when estate laws went through their watershed changes that resulted in today's principles and concepts.
Back then, an honour system actually worked most of the time. Today, not so much. Today towns and cities are bigger, allowing less interaction between individuals and their neighbours. This means that bankers, lawyers, police, doctors, and clergy don't necessarily know what's going on with seniors. They don't know which of the kids has been taking care of Mom and who has been estranged for the past 10 years. They don't know who was arrested or declared bankruptcy. Privacy laws can protect individuals but they can also isolate them,
There has also been a major shift towards keeping estate matters within the family. You would think that would protect people, but the opposite is true. At one time, people often chose their executors from among prominent citizens such as businessmen, lawyers, clergy, police commissioners, and local politicians such as mayors and MPs. They did this partly to gain an executor with skills such as literacy and fluency with money. It was also party because the executor would have a public reputation to protect and would therefore behave honestly with regard to the estate.
These days people almost always choose their own children, however poorly suited to the job, and sometimes those children don't feel they have to answer to anyone. There is a vast sense of entitlement awash in our society today and it is most evident when it comes to estates. Some people's kids can rationalize all sorts of theft from parents and pressure on parents to hand over valuable assets such as homes and bank accounts. Nobody from outside the family sees what is going on so it leaves it up to siblings to start lawsuits against each other if they want to stop the abuse.
I strongly believe that in our country, we need a public office that oversees estate administration. We need a registry for executors who should have to file certain documents within specified limits. All parties to the estate would know that documents are going to be examined by this office. Executors and beneficiaries alike should be aware that failure to adhere to the rules may lead to them being removed from the estate altogether. There should be a roster of knowledgeable lawyers and mediators available and an expedited court process for disputes.
I don't expect to see such an office in my lifetime but after 30 years in this business I honestly believe that executors and beneficiaries need help. The system is outdated and inaccessible. Families are being destroyed, estates are being plundered, and resources are being wasted.
As an attorney, have you ever had a case that tested your sanity?
J. Brian Watkins
J. Brian Watkins, former Litigator (1993-2011)
Answered 9h ago
Josh, I don’t want to seem flippant—really.
They all did.
Litigation in the modern sense of the word is insane.
It has gotten so bad in many jurisdictions—mine was California—that justice cannot be had. California has underfunded its courts for so long that a civil case simply doesn’t have a chance.
In California most important agreements come with an arbitration clause. Arbitration is “arbitrary”—you are agreeing to hire a private judge. But the private judge is so expensive that you just take whatever sloppy settlement you can get.
I was so disgusted by the rampant abuse and the inability of the system to do anything about it that I jumped off the ship; I couldn’t do it any longer.
In my opinion, litigation only begins to be an option if you can afford $50,000 in legal fees at a minimum. If you can—great, buy your ticket and get ready to wait for a courtroom. It will take years to get to trial and if you are a business owner I guarantee that your better option would be to take the loss and move on.
If you have an insurance policy and suffer a loss, the insurance company will deny the claim. They will offer you a lousy and incomplete settlement every single time.
If you reject the settlement, be prepared to endure years of litigation before the insurance company settles fairly. They will if you fight. But that is hardly a consolation as you spend many tens of thousands of dollars.
Here is my standard intake discussion:
You’ve been bitten by a rattlesnake. Your choice is to chase that snake deep into the woods, deep into that rattlesnake’s home territory where it makes the rules or you can get yourself to a hospital and treat the bite. Don’t be the foolish hiker that chases the snake down and kills it only to then realize that you are in the middle of the woods with a dead cell phone and need to get to a hospital.
OK—that’s figurative of course.
Yes, there were cases I took in which the guilty were punished and justice carried the day. I’m proud of that work. But most victories were Pyrrhic. Often the party against whom a judgment entered simply transferred assets away. Sure, that’s illegal and wrong, but it takes years of work to collect even simple judgments.
You are trying to collect money from someone who is spending as much as they need to to avoid giving it to you. And, you are trying to use an antiquated system of collection that relies on disinterested sheriff’s personnel and clerks who are ready to reject your efforts if you so much as forget to dot your “i” correctly. Frustration? That’s the kindest term I can think of.
When you win a civil case you are presented with a judgment—not money. A judgment is merely a fishing license authorizing you to try and collect.
Also, bear in mind that you will have at least two full years of appeals if the other side files even a frivolous appeal. You could conceivably have a decade long trip up and down from the trial court to the Court of Appeal—particularly if your case involves novel questions, which they all do if a decent lawyer is involved.
If you do it correctly and present a real threat—they will just file for bankruptcy protection.
Honestly, if you have to litigate, you’ve already lost.
The best and highest service an attorney can render a client is to keep them out of court.
Do I tell my lawyer that I am guilty of a charge and then trust them to defend me as if I were innocent?
USA-Stephen Link, Attorney-Aug 19/18
As usual, please ignore all answers not penned by actual attorneys. What impels people to answer questions they have no clue about absolutely confounds me.
Roughly 40% of my practice is criminal defense. When I meet with people to talk with them about their case, I usually have a long list of questions to get through.
When you meet with your attorney the first time they will guide the conversation. Those of us that have done these cases before know exactly what information we need and we don’t waste time getting to it. Circumstance rules criminal defense.
Answer our questions honestly. I can’t say that enough. No half-truths, no speculation, no rant on how the officers were a little too rough with the cuffs, just the facts. If we ask a question about a detail that seems bizarre to you, answer honestly: it’s important.
We work with what we have and if you give us garbage, you’ll get garbage. Keep this in mind: your defense counsel’s duty is to you. They will defend you to the absolute best of their ability, regardless of if you tell them you were guilty or not.
There are certain ethical restrictions about telling the truth to the court, but under no circumstances will your attorney throw you under the theoretical bus. Any attorney not willing to give one hundred percent to their clients isn’t worthy of the title.
Aretha Franklin passed away without a will
By now, everyone is aware that Aretha Franklin, the Queen of Soul, passed away a few days ago at the age of 76. Now reports are circulating that she did not leave a will disposing of her $80 million estate.
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Having an estate paid out all at once to beneficiaries may or may not be the best idea. Certainly it's the quicker, cleaner route and the estate can probably be would up more quickly than if the shares of the beneficiaries were to be held in trust. But there are plenty of good reasons for setting up those trusts even if they take longer for the estate to wind up. For example, the article I mentioned above says that one of Ms. Franklin's children has special needs. It's pretty unusual for a parent even of modest means not to appoint a trustee for a child who cannot manage his or her own money. Trusts can also be used to protect beneficiaries from creditors and the division of assets on divorce.
It occurs to me that Ms. Franklin, who was by all reports ill with cancer, might have been considering what she would do with her estate and whether she wanted to set up trusts. After all, we do hear a lot of horror stories about rogue trustees, in-fighting among beneficiaries, and all sorts of trouble arising from greedy and dishonest people who get (or want to get) their hands on trust funds. I wonder if she heard some of this herself and was trying to avoid creating that sort of mess for her children.
It seems a lost opportunity to appoint someone Ms. Franklin trusted as her executor. And without a will, she could not make gifts to charities or to friends. We'll probably never know why she didn't make a will.
We'll probably never know why she didn't make a will.[above]
And then the fight started....and the Lawyers loved Aretha Franklin and her music more then ever. It was money to their ears.
I recently read an interesting article in Forbes about the fact that at least three different people are fighting over who gets to be the executor of the estate of notorious killer Charles Manson. One claims to be Manson's son, another claims to be his grandson, and the third is a collector of Manson memorabilia who visited Manson in prison.
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It's all a bit lurid given the notorious past of the murderous Charles Manson. It's made even worse, in my view, by people such as a collector of memorabilia showing up with a will that just happens to give him Manson's possessions and - specifically spelled out in the will - Manson's body. There are cases in which a million dollars would be too little to tempt me to be a probate judge for even one day, and this is one of them.
There aren't many Charles Mansons in the world, thank God, and most of us will never attract the attention of collectors of dark memorabilia. Even so, the main issue in Manson's estate is the same issue as in many ordinary estates: greed. People behave strangely when there is money on the line.
Another issue highlighted by this case is that of someone apparently making serial wills. Because each of Manson's purported wills was vastly different from the others in every possible way, because they were made without legal advice, and because they were apparently stored in various places, it makes it harder to discern his real intentions. There is no consistency in terms of his wishes.
In most people, such abrupt swings from one choice to another might signal mental incapacity and/or undue influence. Perhaps nobody expects mental stability from Manson but we do hope it's present in our relatives when they make their wills, and a series of different wills like this can be a warning sign that all is not right.
Surely, certainly, experts can verify the validity of these 'will's. Should they be valid, let them all fight it all in court. That is the American way. If none are vaid then the state should just burn everything. No one should profit from his misdeeds. Enough about Manson. We have all moved on to Trump-White House Skelter. IMO.
Alex C. Lee, Assistant General Counsel at Gringotts Wizarding Bank (2012-present)
Answered Aug 22, 2017
The legal profession is not glamorous at all.
Forget about Suits, The Good Wife, Law and Order. None of the TV shows has portrayed the life of a lawyer in a realistic way.
I have never really watched any of them, but I know they are not realistic. Otherwise, no one would watch them at all.
Disclaimer: I'm not a lawyer, at least not yet. Here's only what I know about the legal profession. It's a reality check for whoever claims s/he wants to be a lawyer since a kid.
As a lawyer, you're no more different than the janitor in the stairway, the waiter at a restaurant or the maid in the mansion.
The legal profession is part of the service industry. Your time is never your own. Your client’s need has to come first. If your client comes up with something on Friday evening and wants it to be done by Monday, you have to cancel your weekend plans whatsoever. No matter what the plans are. Unless you don't want your job anymore.
The schedule can be extremely unpredictable. In a large law firm, litigators may be slightly more predictable than corporate lawyers. But still, you have to work long hours, grind over your desk, drink one coffee after another.
If you're a junior attorney, the seniors might yell at you at anytime.
The slight difference from janitor, waiter or maid is that lawyers are paid higher and you don't have to do much manual labor.
Many lawyers never get the opportunity to argue in a courtroom.
Contrary to the popular belief, speaking is not the main part of a lawyer's job. Reading and writing constitute at least 80% of the job. In the first few years, most lawyers will be a researcher, going through millions of case laws, treaties, and statutes. Document reviews and cite checking are a large part of the job.
Lawyers working for the government might have more opportunity to argue in court, but oral argument in court is not the decisive component of court proceedings. Before you really get to make your oral argument, there are hundreds of documents to write and to file. The legend of Alan Shore only exists in fictions.
Being a lawyer is not a road to riches.
Even if you end up as an associate at a mega New York law firm. If money is the No.1 reason to pursue a career and you are not really interested in law, then the legal industry is not for you.
Being a lawyer may bring you enough money to make ends meet, and you won't starve on the streets, but it won't make you a billionaire. A huge part of the salary earned from the mega NYC firm will go to rent, and to the high living cost. There will be enough money left for you to live more comfortably than the working class, but at the expense of crazy working hours and your personal life.
Sure some partners in law firms make millions of bucks per year, but not everyone is on the partner track. If you are lucky enough to be on the partner track, it may take almost a decade to be made a partner, and at that point, you probably have already had two heart attacks and divorced three times.
As a lawyer, you need to make sacrifice in terms of your social life.
Cravath Swaine & Moore LLP, the Vault 1 law firm in the NYC, is known as CSM, short for Cannot Stay Married.
With an unpredictable schedule, you probably have to cancel dinner plans or honeymoon trips at the last minute. Unless you are dating another lawyer, not many people can put up with your lifestyle.
The wife of a lawyer once told me she left like a single mom all the time, as she was a stay-at-home mom and her husband was a senior associate at a major law firm.
Most lawyers have to constantly worry about their debts.
Every year, a portion of law school admits get decent amount of scholarship and even full rides, but many more have to take out loans in order to pay for the high tuition.
Ever since 2008, the legal market is saturated, and the job prospect is bleak. Nowadays, even graduating with decent grades from a top ranked law school will not guarantee jobs. In some of the top 20 law schools, a large portion of the graduating class have to take on jobs that do not require a law degree at all.
I'm fortunate enough to be one of the few with decent scholarships, but job prospect is still something I worry about every day. It's something everyone worries about every day.
That said, I don't think being a lawyer is a bad job.
Some of the saddest truths do not exist only in the legal profession, but in every other profession as well, if you want to make a decent living. There are always some jerk colleagues and bosses who want to give you a hard time. There is always significant pressure if your goal is to thrive in an industry.
Despite the long hours and constant stress a lawyer has to deal with, there are a lot more people in this world who work equally long or even longer hours but still struggle under the poverty line with no job stability or health insurance. For example, the workers on the construction site, the cleaning lady in the shopping malls, the guy who delivers takeouts to your apartment, or the workers digging in the mines, etc. We seldom hear people talking about how exhausting these jobs are, because these jobs do not pay big bucks, do not provide stability, do not come with health insurance and retirement benefit, and no one wants to end up doing them. Those people deserve sympathy more than the exhausted lawyers staying up inside office buildings, but they have been forgotten — no one wants to imagine themselves doing such jobs.
Meanwhile, the stress level and heavy workload of the investment bankers and lawyers are frequently brought up. One thing, these careers look glamorous and they pay well. The bankers and lawyers sit in highrise buildings, with cool air-conditioning, sometimes free coffee and snacks. No matter how many times people say aloud, “money can't buy happiness and these people aren't happy,” everyone craves for such a well-compensated career, to some extent. Also, lawyers are good with words, and they know exactly what to say to make others feel sympathetic. Most of the time, they successfully make an impression that they are the most miserable workers in the world.
A large portion of lawyers have never held a real job before they graduate from law school. They go straight through from kindergarten all the way to law school. They have no idea what the real world is like. They are treated with privilege from the very beginning. They are not used to the idea that once out of school, they are nobody, and they are highly replaceable.
Beneficiary designations need to be made thoughtfully (CDN but many parts are the same for the US)
When you're having your will made, there is much more to it than simply telling the lawyer who you want to name as your executor and beneficiaries. Your lawyer should do a thorough review with you of your legal and financial arrangements. There are several reasons for that, but the one I want to talk about today is that beneficiary designations must work with your will and all of your other arrangements.
Beneficiary designations are the names you've put on assets such as life insurance policies, RRSPs, RRIFs, and pension plans. When you purchase or set up one of these assets, you are asked who you want to receive the funds on your death, and you name - or "designate" - a beneficiary.
If it has been several years since you set up your beneficiary designations, it's a good idea to take a minute to think about whether your designations are up to date. Have you gotten married or divorced since you named your beneficiary? Have you had more children? Is your financial picture quite a bit different than it was back then? Check your paperwork or call the bank to make sure you know who you have named.
It's important to consider carefully who you want to name as beneficiary. There can be unexpected consequences if you don't fully understand how it's all going to work. For example, a scenario I see often is that a parent in a second marriage has left an asset such as an RRSP to her children of the first marriage. In her will, she wants to leave some money to her spouse. Most of the time, the person describing this situation to me is not aware that by leaving the RRSP to the children, she will incur a large tax hit. Simply moving things around so that the RRSP goes to the new spouse and the other funds go to the children would save the tax.
This doesn't mean that there is one right way to do things that suits everyone. There is no such thing as an answer that is right for everyone. What works for your sibling or friend or co-worker might not work as well for you. This is why you should talk through your specific situation with your lawyer or advisor.
Keep in mind that when a beneficiary is designated on an asset, that asset is not part of your estate. It is not covered by your will and it is not handled by your executor. This may or may not be what you want. If you have designated your children as the beneficiary of a policy or plan, are you alright with them receiving the funds in one lump sum on their 18th or 19th birthday? If not, perhaps you need to think through your beneficiary designation more carefully. A possible alternative is to designate your estate as the beneficiary of the asset, then use your will to hold the funds in trust for your children until they are older.
I often find that people I talk to are confident about their beneficiary designations based on something they once read or that someone mentioned once. How reliable is that information? How well did the person understand it? Is it really applicable? The best way to know for sure is to understand that every person's estate and life is different and advice just has to be tailored to the individual situation.
For executors: Older toys with high values
Posted by Lynne Butler
I often remind executors that they must be careful when cleaning out the contents of a house during the administration of an estate. In particular, there is a risk that an executor will let items go for less than they are worth. If the item was expensive, the beneficiaries can hold the executor responsible for the loss to the estate and - by extension - to them.
Executors, like most of us, might look at an old pile of toys and household objects that haven't been used in years and think that there is no value to outdated items. Unlike the rest of us, the executor has an obligation to get as much money as he or she can for those items. To assist with that, I'm attaching a link to an article about older toys that now can be sold for many times their original value. Click here to read it. Most of the toys mentioned are from the 1980s but some date back much further.
An executor's job isn't easy, especially when you can get into trouble for something like selling an old Hot Wheels car. Whether you're holding a garage sale or listing things on e-Bay, take your time and find out all you can about anything that seems "vintage".
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Do executors who own their own homes incur capital gains tax when they sell estate property?
I recently received and answered a question from a reader but I'd like to chat about it a bit more. It concerns tax, which is never the easiest part of an estate to understand. Here is the question, with my comments following:
"I would like to know if executors sell a deceased property, will the executors be charged taxes as they already have their own property?"
I always have to make a few assumptions when people send it brief questions like this, and in this case I assume the reader is asking about capital gains tax. It appears to be a reference to the general rule that capital gains tax is assessed against the sale of property, with a person's principal residence being an exception to the rule.
The concern seems to be that if executors own their own homes - their own principal residences - then there could be capital gains tax assessed against them for the sale of a property from the estate. There are several rules at work here, but the bottom line is that the executors personally will not have to pay any taxes if it is a usual sale that goes through properly.
The property they are selling belonged to a deceased person and has now been transferred to that person's estate. As executors, they are doing a job, selling the property for the estate. They are not selling their own personal properties. Whether or not there is going to be capital gains tax depends on whether it is the principal residence of the deceased, not of the executors. The executors can own dozens of properties but that has nothing whatsoever to do with the sale of someone else's property.
This is not to say that the residence of a deceased person can never attract capital gains tax. It can. If the executors hang onto the property for a long time - long enough for it to increase in value - then there will be capital gains tax on the increase while it was in the estate. This is because it is no longer the property of an individual who can claim it as a personal residence, but is the property of an estate. Estates don't have principal residences.
If there is capital gains tax assessed against a property, it is still not the debt of the executors personally. They have to use the estate funds to pay the tax, but they don't use their own personal funds. The exception is that if the executors are negligent in selling the property and hang onto it for way longer than is reasonable, the beneficiaries might get annoyed. After all, paying extra tax means the beneficiaries get less from the estate. In that case, the beneficiaries might insist upon the executors paying the tax personally, and they would probably be successful in that claim.
Search for missing beneficiary should be proportionate to bequest
Lynne Butler-lawyer East Canada
ME I would think this would apply to many other countries. Always get legal advice to be sure.
One of the most frustrating things that can occur in the administration of an estate is that a beneficiary might be missing. This usually happens when a will hasn't been updated for a few years and contains a bequest that is out of date but still legally valid. The ones I've seen are mostly gifts made by a parent to "all of my children" before one of the children became estranged from the family.
What on earth is an executor to do? He can't just ignore the gift in the will. The bequest doesn't become invalid just because nobody has seen their sibling for years. Neither can he just choose someone else to receive the gift because he is bound by the terms of the will.
There are some possible ways to deal with the missing person's share of the estate, but all of them require court permission for the executor to vary the terms of the will to bypass that missing person. And to get that order from the court, the executor has to prove that he or she has carried out a reasonable search for the person.
I've recently read an article from Suzana Popovic-Montag, an estate lawyer in Toronto. She makes the point in her article that when an executor is searching for a missing beneficiary, the cost and the extent of the search should be proportionate to the size of the bequest. As Ms. Popovic-Montag points out in her article, it doesn't make sense to spend thousands of dollars to find someone to give them a $3,000 gift.
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This is an area in which an executor must be very careful to avoid personal liability. If an executor fails to make a reasonable search and fails to get a court order directing him or her to pay the bequest to someone else, there is a risk that one day the missing person or one of the missing person's children will show up and demand the inheritance. If the executor has simply kept the funds or given them to someone else, that executor is going to be on the hook personally for the funds.
Some new ways to access legal info on our website-Estate Law Canada
At my firm, we’re always aiming to improve our services. We have a couple of new offerings that we think will be very helpful.
Ask a Question
Sometimes the questions people have are too complicated to be answered in the newsletter or on this blog, but they are not quite in-depth enough to require a full hour with a lawyer. I hear from a lot of people who don't want to spend $400 to get an answer. To solve this problem, we’ve added the Ask a Question section to the Resources page on our website. Now users can pay a small fee ($50) to submit their question and get an individualized written answer from me. Click here to access this resource. Questions can come from anywhere in the country. I'll still be answering questions here on the blog as I always have; the Ask a Question feature is intended for those who need more than a general answer.
Search for an Estate
If you’ve been looking for a completed estate but don’t know where to go, we can complete the search for you, as long as the estate is within Newfoundland and Labrador. This is an excellent option for people representing themselves in estate litigation who need copies of previous completed probates or administrations, or for those who are looking for more information about an estate situation within their family. All the user has to do is enter the information, and we’ll find the documents and forward them on by email. The fee is $40, which includes the $20 the Supreme Court charges for copies of documents. Click here
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Our popular in-house seminar series is now online. Instead of hosting seminars in our office (we seem to have outgrown the available space), we’ll be hosting live webinars so people across the country can attend. There will be a session every few weeks, and we’ll post the upcoming events on our website and in the newsletter. Don’t worry if you can’t make it to a session – each webinar is recorded and we will happily send it to registered participants after the presentation is complete.
You can also subscribe to our monthly free e-newsletter by clicking here
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