Wills, notification of death and probate

Preparing for life after work. RRSPs, RRIFs, TFSAs, annuities and meeting future financial and psychological needs.
Post Reply
tedster
Veteran Contributor
Veteran Contributor
Posts: 8515
Joined: 27 Feb 2005 10:11
Location: Montreal

Wills, notification of death and probate

Post by tedster »

Maybe this should be in a thread on its own? Good idea based on the follow-up discussion. Topic split -- Administrator

Anyhow I was talking by Skype with a relative in BC. She was telling me that the widow of my borther (her Dad) had died. They had boih been married previously with their own children. I think she had 3 or four sons. Anyhow the subject of wills came up. My brother told his kids that he had an understanding with his wife that once he died everything would go to her, (he was dying of cancer). Then when she died something should go to his kids as well.

Anyhow the question arises on the will. My nieces have not seen anything, in fact they were not even advised of this lady's death.

I live in Quebec. Here if you have a Notarial will it has to be registered with the Order of Notaries of Quebec. The Notary is obliged to keep the original and ensure that its safekeeping is transferred in case he/she dies or retires. A lawyer may draw up a will but there is no obligation to register it or keep the original. At least that is the way I understand it. So what happens if a person has a non Notarial Will and they die? Presumably somehow the executor has a copy or knows where to find it. If he/she is an heir, what prevents him from proceeding to Probate and not informing other heirs? Once the taxes have been paid, he/she then has access to everything and can keep it all. In fact if the will was drawn up by a lawyer (and not registered) , how would you even know that it was the most recent will? and how would you find the lawyer who drew it up?
User avatar
Zipper
Contributor
Contributor
Posts: 658
Joined: 10 Aug 2005 16:36
Location: London ON

Re: Inheritance Ideas?

Post by Zipper »

If you are mentioned in a will you must get a copy of said will.

It looks like the wife did not include her stepchildren in her will, otherwise they would have been informed.

If your brother wanted his children to have some of his estate he should have made arrangements in the original will.

I am assuming he did not do that.

Your nieces appear to have been left out.
twa2w
Veteran Contributor
Veteran Contributor
Posts: 2054
Joined: 22 Feb 2005 13:08

Re: Inheritance Ideas?

Post by twa2w »

Crap triple post :oops: :cry: :cry:
Last edited by twa2w on 12 Jan 2017 12:08, edited 1 time in total.
twa2w
Veteran Contributor
Veteran Contributor
Posts: 2054
Joined: 22 Feb 2005 13:08

Re: Inheritance Ideas?

Post by twa2w »

Zipper wrote:If you are mentioned in a will you must get a copy of said will.

It looks like the wife did not include her stepchildren in her will, otherwise they would have been informed.

If your brother wanted his children to have some of his estate he should have made arrangements in the original will.

I am assuming he did not do that.

Your nieces appear to have been left out.
I agree it appears the neices have been left out.
However, not all provinces have the same rules and in some there is no requirement to provide a copy of the will or any accounting.
Of course if probated, the will and probateable assets become a matter of public record.
Ontario IIRC requires a copy of will and an accounting to be provided on request to any party that may have an interest but I don't think it is manditory unless requested.
I believe Tedsters question was what would prevent an executor from commiting fraud. In many cases not much other than the threat of lawsuit or charge of fraud.
BC just revamped their rules on wills, trusts and estates not too long ago so not familiar with those at all. There is now more differences than before between provinces as I understand it.
twa2w
Veteran Contributor
Veteran Contributor
Posts: 2054
Joined: 22 Feb 2005 13:08

Re: Inheritance Ideas?

Post by twa2w »

Double post. Sorry
User avatar
AltaRed
Veteran Contributor
Veteran Contributor
Posts: 33398
Joined: 05 Mar 2005 20:04
Location: Ogopogo Land

Re: Inheritance Ideas?

Post by AltaRed »

BC indeed made a number of changes (more paternalistic) than it has been in the past though I am not familiar with them...since my Will is pretty straight forward.

A couple of points to Tedster.

The BC Gov't does keep a registry where wills can be registered as to name, address, location of will, date, etc. but not a copy of the Will itself. There is no legal requirement to register Wills (although a BC Notary Public or lawyer would do so automatically) so it is quite possible that an individual could do their own Will and have it witnessed and only the witnesses would then be aware of its existence 'at that point in time'.... but not that it is necessarily the latest Will nor that any beneficiary named in the Will even is aware of its existence..

Probate, by definition, is primarily a process of determining the validity of the Will and executor so any application for a Grant of Probate would be reviewed by the Court as to its likely valiidity, identity of executor and informing the heirs. That said, the process is imperfect if the deceased had been writing a number of Wills, never had any Will registered, had less then responsible witnesses, didn't inform who was heirs or executors, etc.

There are few, if any, circumstances where an executor could commit fraud (other than if that said executor was also a joint owner of assets that did not have to go through Probate). That is why financial insitutions insist on Probate to distribute proceeds to other than JTWROS accounts.
Imagefiniki, the Canadian financial wiki The go-to place to bolster your financial freedom
tedster
Veteran Contributor
Veteran Contributor
Posts: 8515
Joined: 27 Feb 2005 10:11
Location: Montreal

Re: Wills, notification of death and probate

Post by tedster »

Who is responsible to notify all heirs that they are indeed heirs? Is it only the Executor who must do this? or is it the Probate court' who will do this?
User avatar
AltaRed
Veteran Contributor
Veteran Contributor
Posts: 33398
Joined: 05 Mar 2005 20:04
Location: Ogopogo Land

Re: Wills, notification of death and probate

Post by AltaRed »

This may help you for BC.

Best I can tell from the link it is the Executor, but I suspect the Court will want evidence? that was done - section "Applying for a Grant". You may want to Google for more information on this aspect. As always, family law can vary substantially from province to province, so one must focus on the province in which the deceased was resident.
Imagefiniki, the Canadian financial wiki The go-to place to bolster your financial freedom
twa2w
Veteran Contributor
Veteran Contributor
Posts: 2054
Joined: 22 Feb 2005 13:08

Re: Wills, notification of death and probate

Post by twa2w »

The executor is responsible for applying for probate. Once probate is granted the executor is free to notify the the heirs( or not). There is no requirement that I am aware of for any other reporting to the courts or any other arm of the government other than the requirement to get a clearance certificate from Revenue Canafa and even this is not a required but the executor does do at their own risk.
( there may be in Ontario but I believe this is only by request)

FWIW most estates are never probated. Real estate passes to the surviving owner, insurance and registered accounts go to beneficiary. If non registered accounts are under 50,000 after funeral expenses and there is a will that is recent and there does not seem to be any dispute, the banks release the funds with a bond of indemnity. Some banks ensure cheques are made out to the beneficiaries in this case. Surprisingly most people don't have a lot of money when they die, FWF regulars are an exceptional lot.

I have seen lots of questionable stuff when it comes to poa's and executors.

I think in many cases it would be easy for an executor to push the envelope.
If my wife and I pass, my son is executor. He would apply for probate, once granted he can open an estate account and start liquidating assets. He pays the tax man and grts his clearance and decides to distribute the assets.
While he gets the bulk of my estate, there could be provisions for a number of neices or nephews, none who live in the same province andnone have never visited us here.. None are aware of those provisions. We have somewhat limited contact with them.
Nothing to stop my son from paying himself the entire estate. Unless one of the nephews gets a copy of the probated will and starts asking questions, which would be unlikely.
tedster
Veteran Contributor
Veteran Contributor
Posts: 8515
Joined: 27 Feb 2005 10:11
Location: Montreal

Re: Wills, notification of death and probate

Post by tedster »

Thanks twa2w, that's what I thought. I know when my mother died, I was the executor. The Notary said I had to get a will search done first. My Mother had left half her estate to me and the other half to my older brother. In the event of either one (or both) pre-deceasing her death, their share would go to their offspring and so on. My brother had 4 children and none asked me if they were getting anything other than some personal mementos. They were very surprised to get what they got. I think that if I had wanted to, I could have kept it all.
User avatar
kcowan
Veteran Contributor
Veteran Contributor
Posts: 16033
Joined: 18 Apr 2006 20:33
Location: Pacific latitude 20/49

Re: Wills, notification of death and probate

Post by kcowan »

When MIL died in BC, BIL was mentioned in the will as being left out intentionally. The courts required him to be notified. We had no know address for him. A skip tracer was hired to locate him. It took 6 months. Then probate (of her townhouse) could proceed.

I think in your case, his intentions were not carried forward to his spouse's will. I think I will be changing my will. I will put 50% of it in trust for my kids, with DW getting all earnings from the trust while she lives. Possibly 10% going to the kids while she is alive.
For the fun of it...Keith
User avatar
deaddog
Veteran Contributor
Veteran Contributor
Posts: 3422
Joined: 19 Jan 2008 19:59
Location: Central BC/Arizona

Re: Wills, notification of death and probate

Post by deaddog »

kcowan wrote: I think I will be changing my will. I will put 50% of it in trust for my kids, with DW getting all earnings from the trust while she lives. Possibly 10% going to the kids while she is alive.
Don't you trust your wife?
"And the days that I keep my gratitude higher than my expectations, well, I have really good days" RW Hubbard
User avatar
AltaRed
Veteran Contributor
Veteran Contributor
Posts: 33398
Joined: 05 Mar 2005 20:04
Location: Ogopogo Land

Re: Wills, notification of death and probate

Post by AltaRed »

deaddog wrote:
kcowan wrote: I think I will be changing my will. I will put 50% of it in trust for my kids, with DW getting all earnings from the trust while she lives. Possibly 10% going to the kids while she is alive.
Don't you trust your wife?
That is a key issue with blended families, 2nd marriages, cohabs, etc. One cannot assume that, for example, the surviving 2nd spouse will pass on any part of the estate s/he inherits ultimately to the deceased's direct children from a first marraige. That last-to-die spouse likely has more loyalty to his/her own children than his/her stepchildren. I personally know of estates that have been through hell (courts and lawyers) for years due to offspring being left out in blended families. My experience has been that it is more likely to happen that way than any other way.

Thus in blended family situations, it is important to think through what is JTWROS, and what is not, and what provisions are in the Will for the various offspring from original marriages, etc. It obviously depends on what stage of life second and even third relatiionships occur, e.g. early in career, having 2 sets of kids, or as empty nesters or retirees. Highly situational.
Imagefiniki, the Canadian financial wiki The go-to place to bolster your financial freedom
tedster
Veteran Contributor
Veteran Contributor
Posts: 8515
Joined: 27 Feb 2005 10:11
Location: Montreal

Re: Wills, notification of death and probate

Post by tedster »

Or management of assets and stuff like that may not be her thing.
User avatar
deaddog
Veteran Contributor
Veteran Contributor
Posts: 3422
Joined: 19 Jan 2008 19:59
Location: Central BC/Arizona

Re: Wills, notification of death and probate

Post by deaddog »

We are a blended family, my spouse has 2 kids as do I. There must be a way to write a will that states that upon the death of the last spouse that the estate is split evenly among the 4 offspring.

Right now we have mirror wills that give all assets to the surviving spouse and splits the estate evenly if we were to go together. All bank and investment accounts as well as all property is in joint names.

I don’t want to place ½ the assets in a trust for the children of the first spouse to die in case the surviving spouse needs to liquidate those assets to fund their remaining years.

Is there some way to add a letter of intent or a letter of agreement to a will to ensure that the surviving spouse will fairly treat all children?
"And the days that I keep my gratitude higher than my expectations, well, I have really good days" RW Hubbard
tedster
Veteran Contributor
Veteran Contributor
Posts: 8515
Joined: 27 Feb 2005 10:11
Location: Montreal

Re: Wills, notification of death and probate

Post by tedster »

deaddog wrote

We are a blended family, my spouse has 2 kids as do I. There must be a way to write a will that states that upon the death of the last spouse that the estate is split evenly among the 4 offspring.

Right now we have mirror wills that give all assets to the surviving spouse and splits the estate evenly if we were to go together. All bank and investment accounts as well as all property is in joint names.

I don’t want to place ½ the assets in a trust for the children of the first spouse to die in case the surviving spouse needs to liquidate those assets to fund their remaining years.

Is there some way to add a letter of intent or a letter of agreement to a will to ensure that the surviving spouse will fairly treat all children?
I doubt very much that this can be accomplished. First of all even if you think you have "mirror image wills" one spouse could change his/hers and the other one would not know. Secondly, once the surviving spouse inherits, there can be no control unless a trust is created. However, I am not a lawyer. I await to see the opinion of others.
User avatar
AltaRed
Veteran Contributor
Veteran Contributor
Posts: 33398
Joined: 05 Mar 2005 20:04
Location: Ogopogo Land

Re: Wills, notification of death and probate

Post by AltaRed »

deaddog wrote:We are a blended family, my spouse has 2 kids as do I. There must be a way to write a will that states that upon the death of the last spouse that the estate is split evenly among the 4 offspring.
,
,
Is there some way to add a letter of intent or a letter of agreement to a will to ensure that the surviving spouse will fairly treat all children?
If everything goes to the surviving spouse, it is my understanding all those assets then become his/her assets to do with what she/he likes, i.e. can change her/his will as s/he likes. That is what I've seen happen in a number of cases of people I know.

Added: That is why spouse and I have much of our assets in our own names..
Imagefiniki, the Canadian financial wiki The go-to place to bolster your financial freedom
twa2w
Veteran Contributor
Veteran Contributor
Posts: 2054
Joined: 22 Feb 2005 13:08

Re: Wills, notification of death and probate

Post by twa2w »

Deaddog, one issue with your situation is that one of you could go tomorrow and the survivor could remarry, throwing a whole other curve into it. Not sure how old you are and how old the kids are and how well they all get along but if one of you goes early, how long potentially could the other one be around?
There is a way with the wills to ensure assets are split but it is not a surefire thing. I don't recall the details around this but a good estate lawyer could help. Its been a while since I dealt with that.

If everything is joint, there would be no assets in your name to create a trust. You would have to convince your spouse to register the house as joint tenants or put it in a trust and put all other assets in a trust and name the trust as irrevocable beneficiaries on the rsp etc. The trust would provide the surviving spouse with the house to live in and income( with capital encroachments) and then on death distribute to the 4 kids. The house maintains its prin res exemption in the trust. This would benfit your spouses kids of vourse if she was the one to pass early.
Who do you trust to be trustee and how much hassle do u want to go through?

You could also each set up a spousal trust but just as complicated.

Trusts get expensive to set up - done properly you could be 15 to 25 k. But no probate. There is an extra tax return to file and the 21 year deemed dispo rule to deal with if you are younger.
Last edited by twa2w on 15 Jan 2017 00:39, edited 1 time in total.
User avatar
AltaRed
Veteran Contributor
Veteran Contributor
Posts: 33398
Joined: 05 Mar 2005 20:04
Location: Ogopogo Land

Re: Wills, notification of death and probate

Post by AltaRed »

twa2w wrote:You would have to convince your spouse to register the house as joint tenants or put it in a trust and put all other assets in a trust and name the trust as irrevocable beneficiaries on the rsp etc.
Do you not mean 'tenants in common' (see my underline) with 'life estate interest' provisions? There is a concept of 'remainder interest' that you may be referring too, in which title reverts to a designated child/children when the surviving spouse passes. Think that may only apply to real property though.
Imagefiniki, the Canadian financial wiki The go-to place to bolster your financial freedom
twa2w
Veteran Contributor
Veteran Contributor
Posts: 2054
Joined: 22 Feb 2005 13:08

Re: Wills, notification of death and probate

Post by twa2w »

AltaRed wrote:
twa2w wrote:You would have to convince your spouse to register the house as joint tenants or put it in a trust and put all other assets in a trust and name the trust as irrevocable beneficiaries on the rsp etc.
Do you not mean 'tenants in common' (see my underline) with 'life estate interest' provisions? There is a concept of 'remainder interest' that you may be referring too, in which title reverts to a designated child/children when the surviving spouse passes. Think that may only apply to real property though.
Good catch. . Tenants in common is what I meant. And I proof read it too :oops:

I wasn't thinking of remainder interest - have never seen that used that I can remember anyway.

There is or was some way of having the wills irrevocable re childrens interests but I can't recall enough details to post with any semblance of intelligence.
User avatar
AltaRed
Veteran Contributor
Veteran Contributor
Posts: 33398
Joined: 05 Mar 2005 20:04
Location: Ogopogo Land

Re: Wills, notification of death and probate

Post by AltaRed »

It might be the concept of mutual wills (or mirror wills) per https://hullandhull.com/wp-content/uplo ... -wills.pdf

There is this paper too that might be more entertaining. https://www.cle.bc.ca/PracticePoints/WI ... lWills.pdf

Those interested might want to pull up a chair, a few cups of coffee and some Advil and start reading.
Imagefiniki, the Canadian financial wiki The go-to place to bolster your financial freedom
twa2w
Veteran Contributor
Veteran Contributor
Posts: 2054
Joined: 22 Feb 2005 13:08

Re: Wills, notification of death and probate

Post by twa2w »

Thanks for the links AR.
The first one I couldn't open.

I am familiar with mutual wills ( different than mirror Wills) and I was thinking of them but there is an agreement or procedure to follow when making them to make them more litigation proof. And as I said, don't recall enough to comment intelligently. And rules have changed on intestacy in some provinces etc.

As per your second link they can certainly have different outcomes when challenged. And subsequent marriages etc can further complicate things.
User avatar
AltaRed
Veteran Contributor
Veteran Contributor
Posts: 33398
Joined: 05 Mar 2005 20:04
Location: Ogopogo Land

Re: Wills, notification of death and probate

Post by AltaRed »

twa2w wrote:As per your second link they can certainly have different outcomes when challenged. And subsequent marriages etc can further complicate things.
Given the brief scan I gave them (since we are also a late stage blended family), I doubt I would rely on any of that given the potential whim of a judge, but it might work under cetain circumstances.

Note: First link opens for me (PDF viewer in Chrome).
Imagefiniki, the Canadian financial wiki The go-to place to bolster your financial freedom
twa2w
Veteran Contributor
Veteran Contributor
Posts: 2054
Joined: 22 Feb 2005 13:08

Re: Wills, notification of death and probate

Post by twa2w »

When I try to open link it keeps relling me the site is unsafe and my tablet won't let me open.

Edit. I did get it open finally. Thanks.

I agree these could be a roll of the dice. Especially for a younger blended family.

For an elderly couple, unlikely to remarry, there may be less risk if well documented.
User avatar
kcowan
Veteran Contributor
Veteran Contributor
Posts: 16033
Joined: 18 Apr 2006 20:33
Location: Pacific latitude 20/49

Re: Wills, notification of death and probate

Post by kcowan »

The thing I am dealing with is this:
1) Everything is joint
2) I die and she gets it all
3) 5 years later she remarries and the guy has his own kids (let's say 4 kids)
4) the new guy wants it split evenly among 6 kids
5) she dies first and someone I don't know decides what to do with his will. Maybe his kids pressure him to leave out my kids.

By leaving her half plus beneficial interest in my half in a trust, my kids are guaranteed what they would have gotten from me alone (but only after she dies). Practically speaking, it is my grandchildren that will benefit.

If she outlives her second husband, she can decide what to do with the new stash that she inherits, if any.

(We have a friend in PV who has outlived 3 husbands and she is not that old.)
For the fun of it...Keith
Post Reply