Twelve FAQ for Wills and Estates

Siskinds’ Will and Estate Lawyers respond to hundreds of calls each year. Here is a list of the questions I am most frequently asked, and my standard responses.

1. How do we find out if there is a will?
2. What happens in an intestacy?
3. When is there a reading of the will?
4. How do I get a copy of the will?
5. What is required for a will to be valid?
6. If there is more than one will, which one is valid?
7. When should I receive my inheritance?
8. The estate trustee (executor) is not responding to my questions. What can I do?
9. I was promised something that is not mentioned in the will. Do I still get it?
10. How are disputes resolved when estate trustees cannot agree?
11. Assets that I expected to see in the estate have disappeared. What should I do?
12. Do estate trustees receive compensation, and if so, when?

1. How do we find out if there is a will?

If you have looked through the deceased’s personal files and papers and nothing can be found, the search must be expanded. If you know lawyers the deceased has seen in the past, check with those lawyers. One should also check with financial advisors, family members, and friends. Check with all of them, in case there is more than one will. (The most recent valid will is going to revoke any prior wills.) If the will cannot be found, then one will need to retain a lawyer to publish notices and advertise to find a will. If no will can be found after these steps are taken, then the estate will be treated as an intestacy.

2. What happens in an intestacy?

In an intestacy, someone must step up and apply to the court to be appointed as “Estate Trustee without a will”. In most cases, that person will be a spouse, child or parent of the deceased. If none of those are willing and able to apply, then the applicants may be grandchildren, siblings, nieces and nephews, and friends of the deceased. If there is a conflict (more than one applicant) there are rules that govern who is likely to be appointed. As a condition of appointment, an Estate Trustee without a will may be required to post a bond. Once the Estate Trustee without a will is appointed, he or she is required, like any other Estate Trustee, to locate and preserve assets, to determine and pay estate liabilities, and (subject to other claims against the estate) to distribute remaining estate property in accordance with the “table of consanguinity” prescribed by the Succession Law Reform Act. The Estate Trustee must be prepared at all times to provide to the Court and to any beneficiary or creditor his or her “accounts”, showing his or her dealings with estate assets.

3. When is there a reading of the will?

This formality no longer exists except on soap opera television.

4. How do I get a copy of the will?

If you are a named as a beneficiary in someone’s will and they have died, you should be notified of this fact and you should be provided with a copy of the will. The same holds true for a “contingent beneficiary” (i.e. someone who may end up being a beneficiary in certain circumstances). You should be notified and receive a copy of the will within 4 to 10 weeks after the person has died. Notification may occur when the persons identified as Estate Trustees in the will apply to the Court to be formally appointed, or it may happen before or outside of that process. If you believe you are named in the will, or if you are a family member who should likely have been named in the will (i.e. such as a spouse, partner or child of the deceased) and you know who is assuming responsibility for administering the estate, you may ask that person for a copy of the will. If it is not provided, you may need to retain a lawyer to obtain a copy of the will. As a last resort you may have to apply to the Court for an order under the Estates Act, requiring that a copy of the will be produced. Any child, spouse or partner of a deceased is likely to be able to obtain such an Order, and if a Trustee is being unreasonable in providing a copy, he or she may be personally liable for the costs of the court application.

5. What is required for a will to be valid?

A will is presumed to be valid if it is an original copy, dated, and bearing the original signatures of the testator (the person making the will) and the signatures of two adult witnesses who are not beneficiaries or spouses of beneficiaries. The witnesses must both have been present and themselves signed the will when it was signed by the testator and they should know that the document the testator is signing a will. It will be presumed that the signatures on the will are valid, and that everyone signed the will at the same time and in each other’s presence, that the testator had the legal capacity to make the will and understood its contents and legal effect, and that the testator signed the will of his or her own free will. However, these presumptions will not be applied if there are “suspicious circumstances.” In such a case, any interested party may seek a court order requiring an estate trustee to “prove” the will “in solemn form”. This could involve a court hearing. If a will is found to be invalid, then a previous will may govern the distribution of an estate. If no previous valid will can be found, then there is an intestacy. There is also a particular type of will, called a “holograph will”, to which different rules apply. It need not be witnessed. However, to be valid, it must be entirely in the handwriting of the testator and be signed and dated by the testator. It must still be proven in the same manner as a regular will (in terms of capacity, voluntariness, knowledge of its effect, etc.) except one must take the additional step of proving that the handwriting belongs to the testator.

6. If there is more than one will, which one is valid?

Because a more recent will normally revokes all prior wills, the most recent valid will is normally going to be the only valid will. However, sometimes a testator’s estate plan will involve multiple wills dealing with different estate assets. This may be done for tax reasons. If this is properly done, there may be multiple valid wills.

7. When should I receive my inheritance?

There are two basic forms of inheritance: a bequest, and a share of the residue of an estate. A bequest is a specific gift of money or property. The residue of an estate is what remains after all liabilities have been paid and all bequests have been distributed. Sometimes a will specifies when a bequest is to be paid out (for example, when someone reaches a certain age). However, if there is no specific provision, a bequest should be paid once the Estate Trustee has determined and paid most estate liabilities and determined that there will be sufficient funds, after payment of bequests, to satisfy any further estate liabilities. The timing for this is dependent on the nature of the estate, its assets, and the specific bequest. However, one might reasonably expect this to occur anywhere from 6 to 18 months after death. Distribution of the residue of an estate may take longer. Residue is not typically paid out until all other payments have been made and tax liabilities have been determined. One might reasonably expect this process to take 18 to 24 months, or longer, depending on the complexity of the estate. Sometimes a portion of the residue will be paid out as an interim distribution, with the remainder being held back to satisfy any further expenses or liabilities.

8. The Estate Trustee (executor) is not responding to my questions. What can I do?

An Estate Trustee should respond to reasonable enquiries of creditors and beneficiaries concerning the status of the estate. To avoid facing multiple questions from a number of beneficiaries, a prudent Estate Trustee, or his or her lawyer, should provide status reports on the estate, indicating what must be done and when it is anticipated that those steps will be completed. An Estate Trustee must make available, within a reasonable period after request, a summary of original and current estate assets (to the extent that they have been ascertained) and should be prepared to account for all estate expenditures. An Estate Trustee is not required to, and should not be responding to questions from individuals (other than parents of minor beneficiaries and attorneys or guardians of incapable beneficiaries) who have no interest in the estate, except, to provide a copy of the will to family members or partners who have asked for same. If you have an interest in an estate, as a creditor, beneficiary or actual or potential claimant, and your questions are not being answered, then it is best to submit your questions in writing (and keep a copy of what you sent). Given that your correspondence may end up becoming evidence in a subsequent hearing, you should be careful to ensure that your correspondence is respectful and cordial and imposes reasonable time limits, and that you are not asking questions that have already been answered. If your questions are not being answered or the answers are not satisfactory, it is time to consult with a lawyer who deals with estates. If you are asking for information you are entitled to know, a lawyer can help you obtain answers.

9. I was promised something that was not mentioned in the will. Do I still get it?

The law distinguishes between gifts given before death and bequests and inheritances flowing from a will or intestacy. If the testator physically gave you a gift before he or she died, and you have taken possession of it or your name has been assigned to it, then you may be entitled to keep it. You may have to prove, however, that the testator did intend to give it to you and that you were not simply borrowing the item or holding it as a trustee. Gifts of property, belongings and funds that a person still owned at the time of death must be referred to in that person’s will to constitute a testamentary gift. Otherwise, the gifts are invalid and the items form part of the general estate. Sometimes wills refer to the existence of a memorandum stating that certain items shall be given to specific individuals, with a request that the Estate Trustee should honour the testator’s wishes. However, unless these gifts are specified in the will, a memorandum to this effect is not binding on an estate trustee. The Estate Trustee may honour it, or may assign the items in question a value that becomes part of that person’s share of the estate, or may decide to disregard the memorandum. Oral promises, or even the testator’s handwriting on an object stating that it should be given to someone, are not binding gifts.

10. How are disputes resolved when Estate Trustees cannot agree?

When there are two or more Estate Trustees and they cannot agree on a particular course of action, no trustee can act unilaterally. Even a majority of trustees cannot prevail. The decisions of trustees must be unanimous. In the case of disagreement, there are several options. The easiest is to compromise, providing that the compromise is in accordance with the will and does not prejudice creditors or beneficiaries. It is rare that one is going to get everything one wants, and sometimes compromise simply makes sense in terms of time, cost, and peace of mind. If compromise cannot be achieved, one may need to bring in a third parties such as lawyers or mediators, to help resolve the dispute. As a final recourse, which sometimes is the only way, one may have to apply to court to decide the issue. In such cases, the trustees may need to obtain separate legal representation.

11. Assets that I expected to see in the estate have disappeared. What should I do?

There are several possibilities in play here: the assets were given away or disposed of prior to the testator’s death; the assets have been taken by someone before or after the testator’s death; the assets have disappeared; or the assets have been accidentally or deliberately omitted from a list of estate assets. It is usually the best course to cordially point out to the estate trustee the omission, suggest it is an oversight, and that perhaps the item needs to be found and added, and await a reasonable time (but not too long) for a response. The response you receive is going to determine the course of action that needs to be taken. If the asset has disappeared in suspicious circumstances, or someone is improperly claiming ownership of an item, you may have to retain a lawyer to deal with the issue and you should not wait too long to do so. However, it should be borne in mind, looking at the “big picture”, that some things are simply not worth fighting over. The value and importance of the item and whether its disappearance has a material effect on your overall inheritance should be considered.

12. Do estate trustees get compensated, and if so, when?

Estate Trustees are entitled to reasonable compensation for the work they must do. The manner and rate of compensation may be specified in the will, or it may be agreed upon by beneficiaries or determined by a Court. While there is no printed fee schedule, there is a generally accepted basis for determining compensation: 2.5% of original estate assets and estate income received; and 2.5% of estate disbursements and distributions. If the estate is going to be managed for a number of years, a trustee can also seek additional compensation for “care and management” of estate assets. That compensation is most often set at 2/5 of 1% of the average annual value of assets being managed. While these compensation rates are generally accepted, before they can be paid they must still be either consented to by beneficiaries of the residue of the estate or approved by the court. In most cases, compensation is taken upon distribution of the estate. However, in some cases, compensation may be taken while an estate is being administered. In either case, compensation should not be taken prior to being consented to in writing by all beneficiaries. If any beneficiary is under the age of 18 or suffering from legal incapacity, or if any beneficiary does not consent, then the trustee must seek approval from the court before being compensated, through a process referred to as a “passing of accounts”. This process requires the trustee to seek court approval of all steps taken with estate property. The process of having compensation approved by a court is a time consuming and expensive process. Therefore, an Estate Trustee will typically try to obtain consent to his or her compensation claim from beneficiaries, as this can eliminate a formal passing of accounts. A beneficiary should carefully consider whether to withhold consent to compensation. The estate pays for the passing of accounts, which means that the inheritances of all beneficiaries, including the beneficiary withholding consent, may end up being reduced to cover this cost. Compensation paid to an estate trustee is income which must be reported in the estate trustee’s personal tax return.

If you have any questions, or there is something we can help you with, contact the Siskinds’ Wills and Estates Lawyers at 519.672.2121. We will be pleased to be of assistance.