What Legal Issues Will Arise?
Feb 10, 2016
Do I Need a Lawyer?
While there is no requirement to use a lawyer, probate is a rather formal procedure. One minor omission, one failure to send a copy of the petition, or a missed deadline, can cause everything to come to a grinding halt or expose everyone to liability. The death of a family member or friend sometimes tends to bring out the very worst in some people. Experience shows that even in close families there is a tendency to get overly emotional about relatively trivial matters at the time of a loved one's death, such as who gets the iron frying pan and who gets the kettle. Such minor matters, or any delays or inconveniences can be upsetting, pose issues of fairness, and create unfounded suspicion among family members. Thus it generally is a very good idea to engage a lawyer. Creditors should be notified promptly following a death. If there is to be a delay in meeting debts or instalment payments, you may be able to file for extensions. Many creditors are sympathetic to these situations and are willing to grant your requests. If credit insurance or mortgage insurance policies were in force, purchases made on credit (vehicles, furniture, etc.) or the home mortgage may be paid off by the insurance. Ask your lending institution.
Throughout this process, Cole Funeral Services can guide you, through our aftercare program.
Estate Settlement Issues
Wills, probate, administrator, social security benefits, veterans benefits, insurance benefits, joint property, estate taxes and other issues may appear overwhelming after the death of a loved one. Sorting and settling all the details may be confusing because many of the terms are unfamiliar. This guide is not intended to be a substitute for specific individual tax, legal, or estate settlement advice, as certain of the described considerations will not be the same for every estate. Accordingly, where specific advice is necessary or appropriate, consultation with a competent professional is strongly recommended. Most of all, keep in mind that while it is important to take care of all of these activities, it's more important to move slowly at a pace that is comfortable for you during your grieving process.
Gathering Important Data
Locate as many of the following documents as possible: Wills, Deeds, Bank Books, Stock Certificates, Military Discharge Papers, Social Security/Insurance Card, Tax Forms, Vehicle and Boat Titles, Insurance Policies, etc.
Before the business and legal issues of the estate can be pursued, it will be necessary to obtain certified copies of the death certificate. You can order them from the Funeral Director or directly from the Registrar of Vital Statistics in your area. It is always better to order a few more than what you think you will need. Most agencies will only accept certified death certificates and not photocopies. In some cases, there may be a need to obtain a certified copy of the death certificate without a cause of death. These certificates are needed to transfer the title on a house, mobile home, and automobile or in some cases for court procedures. You should make this request when ordering the certified copies.
Bank & Safety Deposit Boxes
Because banks are subject to both state and federal regulations, procedures can vary greatly from bank to bank and state to state. Some states have been known to automatically freeze joint bank accounts when one of the joint owners dies. To avoid problems, contact your bank directly, to determine the amount of money accessible and learn the procedures for releasing these funds, and to establish a new account for funds received after the death.
At least one joint checking or savings account should be left open for at least six months. This will allow you to deposit any checks that you are entitled to but are in the deceased's name. For instance, "Insurance Reimbursement Check". This check would be endorsed on the back as follows: "Deposit Only" with the deceased's name PRINTED underneath, followed by the bank account number.
If after six months you want to take the deceased's name off the account, the bank will want to have a Certified Copy of the Death Certificate.
A Certified Copy will also be necessary for any accounts that are left "In Trust For" someone. (I.T.F.). Your bank can advise you regarding IRA's or CD's (Certificates of Deposit). Both will need a Certified Copy of the Death Certificate before they are released.
If the safety deposit box is in the sole ownership of the deceased, banks will require a Certified Copy of the Death Certificate and Letters of Administration to gain access to the contents. On co-owned safety deposit boxes, the rules vary from state to state. Call your attorney or bank for their requirements.
Your executor has full responsibility with regards to your funeral arrangements. If so desired your executor can change anything with reference to those arrangements. This is the person all funeral homes take direction from.
Since your personal representative is given access to all property in the probate estate, the selection of a competent and trustworthy person is very important. It is wise to nominate someone who has business experience, intelligence, and the utmost integrity and honesty to serve as your personal representative. Your nomination of personal representative, (along with alternatives who are asked to serve in the event that the prior nominee is unwilling or unable to act), should appear in your Will. This is your chance to tell the court whom you think is best to do this job for you (since you can't speak to the court in person).
Most jurisdictions require the personal representative to post a surety bond covering their actions. This requirement can be waived if your Will states that you want your nominated personal representative to serve without bond.
Q: What is an Executor?
The Personal Representative of your estate (also commonly referred to as an administrator or executor) is responsible to gather and inventory all of your property at the time of your death, determine all your outstanding debts, pay all of your legitimate debts and then distribute the remaining property in accordance with the instructions provided in your Will.
The Personal Representative is appointed as part of the probate proceeding and has the responsibility for guiding your property through the proceeding, subject to established probate rules and procedures. In many areas, the court has a considerable amount of control over the activities of the Personal Representative, and prior permission of the court is required for the Personal Representative to take action with respect to property in the probate estate.
Q: What are the responsibilities of the executor?
The following are some of the general responsibilities of the executor in taking charge of the assets of the deceased, paying the debts, and distributing the assets to the beneficiaries. This list is not intended to be complete but does indicate the type of issues. Your lawyer will provide you with a complete list.
- Ensure that all the real property is protected, including arranging if necessary fire insurance on buildings, changing locks to protect assets, etc.
- Locate safely deposit boxes and attempt to locate the key.
- Selecting the lawyer to act for the estate and obtaining from them notarial copies of the death certificate. Choose a lawyer who has extensive experience in Wills and Estates work. Pick an accountant to assist you if your lawyer suggests this is appropriate. Discuss the lawyers and accountants fees and disbursements right up front.
- Locate all life insurance policies and notify the insurance company of the death and forward a copy of the death certificate to have the policy paid to the beneficiary.
- Notify all insurance companies including house insurance and car insurance of the death. Ensure that insurance is maintained make a list of all the assets and including stocks, bonds, pension funds, bank accounts, government investments, superannuation payments, holiday pay from work, work related life insurance or benefits for the spouse etc.
- Find any interests in partnerships or companies and locate shareholders and partnership agreements and provide a copy to the lawyer for his examination (there may be triggering clauses in those agreements that must be met quickly).
- Locate the previous several year's income tax returns and provide copies to the lawyer or tax accountant. These must be reviewed quickly to ensure that no filing dates are missed. Government tax authorities do not care that the person is deceased. The executor may be personally liable for any tax penalties that are incurred because filing dates are missed.
- Pay the account of the funeral director. Your lawyer will tell you the priority of paying debts, but normally the funeral directors account is to be paid before most other debts.
- Make a list of all debts. This will include accounts for charge cards, house utilities, property tax arrears, income tax arrears, loan payments, outstanding leases, mortgages on house or vehicles, alimony or prior separation agreement. Provide this list and supporting documentation to the lawyer.
- Once all the assets have been located and the debts paid (including the account of the executor) then the estate will be disbursed in accordance with law and the terms of the Will.
- You will need to advertise for creditors in the local newspaper to ensure that all the debts are known and paid.
- Your lawyer will advise whether any court proceeding is required regarding the Will. This is called filing for Probate. Often if there is adequate tax advice at an earlier date, the requirement for Probate can be avoided. This will save the estate considerable money.
- You will need to notify the beneficiaries about their bequest and provided there is money left after the payment of all debts, the beneficiaries will receive their money or assets from you as Executor of the estate.
- You may need to open up a Bank Account in the name of the Estate at your local bank using a notarial copy of the Will (or Probate if required) together with a copy of the death certificate. Use a chequing account so that you receive the cheques back in order to verify that you paid the funds if required at a later date.
Q: Does the executor have to serve?
It is your choice to serve or decline to serve. If you choose to serve as personal representative (executor) you can later resign, although you may have to provide an "accounting" for the period you served. If you decline to serve, or resign after serving, the alternate Executor named in the Will typically is then appointed by the probate court.
If no alternate is named in the Will, or the named alternates die or are unwilling to serve, or a person dies without a Will, the probate court will appoint someone to serve.
Q: Who can be appointed an executor of my Will?
Probably the most important qualification for an executor is to ensure that the person that you select to be your executor under your Will be blessed with common sense and a sense of fairness in following through the obligations that the executor has under the Will.
As some jurisdictions have residency qualifications for the Executor, you may wish to ensure that you select as executors for your Will people who reside in the state where you live.
If you have made provision that the executor is to make payments to the trustees for any minor children or grandchildren, then this obligation may continue for many years. As these are on-going obligations under the trust provisions in the Will make sure that the executors are not too elderly. You do not want the executors to decease before the estate is administered and closed.
The naming of an executor under the Will does not mean that the nominated person must act. This person may decline to act, as an executor. To protect the estate make sure that you have a back-up executor named in the Will. Typically, wording is as follows: "In the event that John Smith neglects or refuses to act as my executor then I nominate John Adams as my executor." There is no magic in the wording as long as the intent is clear.
Often an accountant, financial advisor, or lawyer is also nominated as a second executor. This joint executor ensures that there is a solid degree of competence and experience which is especially important if there are substantial assets involved or Trusts to be administered.
Q: Does the executor get paid?
In addition to all out-of-pocket expenses in managing and settling the estate, personal representatives (executors) generally earn a fee of about 2% of the probate estate for their work. This varies moderately in jurisdictions and generally decreases as a percentage as the size of the estate increases.
All fees and reimbursed expenses are subject to court approval. The court in cases of unusually difficult or extraordinary circumstances may allow additional fees. On the other hand, if a Personal Representative is derelict in duty, the court may reduce or deny compensation, and the Personal Representative may be held responsible for any damages they caused.
If a person is both the sole beneficiary of the estate, and the estate is not subject to Federal Estate Tax, it usually does not make sense to take any fees as all fee income is subject to Income Tax. The money a beneficiary receives from the estate is income tax free.
Wills are simple, inexpensive ways to address many estates. But they don't do it all. Here are some things that may not be accomplished in a will.
Named Beneficiaries for Certain Kinds of Property
A will can't be used to leave:
- Property you held in joint tenancy with someone else. At death, the deceased's share will automatically belong to the surviving joint tenant(s). A will provision leaving the deceased's share to someone other than the surviving joint tenant, would have no effect unless all joint tenants died simultaneously.
- Property that was transferred to a living trust.
- Proceeds of a life insurance policy for which there is a named beneficiary.
- Money in a pension plan, individual retirement account plan or other retirement plan.
- Money in a payable-on-death bank account.
QUESTIONS ABOUT WILLS
Most people know they need a Will, yet 70 percent of us do not have one. People procrastinate for many reasons, but it's important to know that writing a will doesn't have to be complicated or expensive. And once it's done, you can rest a little easier, knowing that your wishes will be followed after your death.
Q: What is a Will?
A Will is a document that is created to help make your loved ones decisions at the time of death. The Will contains important direction as to your wishes for your funeral. It can also contain your directions on dispersing the estate amongst your loved ones.
Your Will can also help to name someone to be left in charge of your children if something were to happen to you. This very important when there are young children involved in the family.
The Will also simplifies the legal process for the lawyer which will minimize the legal costs that your family will encounter.
One of the most important aspects of the Will is that it will prevent Family bitterness. Your Will can help guide your family through all aspects of the death process.
Q: What if I don't have a Will?
There is no specific person responsible for making your funeral arrangements. This can make co-ordination of funeral details very difficult and often leaves hurt feeling if everyone does not agree.
If you die without a Will, you have died intestate. Your property must go through the probate process in order to have the legal title to the property transferred to your heirs at law. Applicable state or provincial statutes define your heirs at law. The law of the state or province where you live controls the distribution of your personal property.
The rules for determining who gets property distributed from an intestate estate have many variations. Subtle differences between the rules can have a material effect on who inherits when there is no Will.
An example of intestate estate distribution rules, taken from the community property is:
- If married, the spouse gets 100 percent of the community property, but only one-third or one-half of the separate property left, as children, parents, and any issue of children or parents, can share in the distribution.
- If married (this includes widows and widowers), the property is distributed to relatives in the following order:
- All to your progeny: your children, grandchildren, great grandchildren, etc., if there are any. If none, then
- All to your parents (equally), or to the surviving parent, if any. If none, then
- All to the progeny of your parents (your brothers and sisters, then your nieces and nephews, etc). If none, then
- All to your grandparents (equally) or the surviving grandparent, or the progeny of your grandparents (your aunts and uncles, then your cousins, etc.). If none, then
- All to the progeny of any predeceased spouse (your step-children). If none, then
- All to your next of kin. If none, then
- All to the parents of a predeceased spouse (your mother- and father-in-law), or the progeny of the parents of the deceased spouse (your brothers- or sisters-in law). If none of the above exist, then
- All to the State
In addition, most states have many special rules that apply to widow/ers, half-siblings, children born out-of-wedlock, foster and step-children.
Q: How Do I make a Will
Making a Will that can accomplish what you want it to isn't nearly as complicated as many people fear. There are just a few simple rules; follow them and your wishes will be carried out.
Age: To make a Will, you must either be at least 18, or an "emancipated" minor.
Mental State: You must be of "sound mind" to make a valid Will. It's not a rigorous requirement. The standard interpretations require that you know what a Will is and that you're making one understand the relationship between yourself and those persons who you would normally provide for, such as a spouse or children understand what you own, and be able to decide how to distribute your property.
Q: Do I need a lawyer to make my Will?
Making a Will rarely involves complicated legal rules, and most people can draft their own Will with the aid of a good self-help book or software program. You just need to know what you own, whom you care about, and have a good self-help resource to guide you.
If you have questions that aren't answered by the resource you're relying on, a lawyer's services are warranted. Even so, you don't have to turn over the whole project; you can simply ask your questions and then finish making your own Will.
Q: What makes a will legal?
Any adult of sound mind is entitled to make a Will. Beyond that, there are just a few technical requirements.
The Will must be typewritten or computer generated (unless it is a valid handwritten will, as discussed above).
The document must expressly state that it's your Will.
You must date and sign the Will.
The Will must be signed by at least two, or in some states, three, witnesses. They must watch you sign the Will, though they don't need to read it. Your witnesses must be people who won't inherit anything under the Will.
You don't have to have your will notarized. In some cases, if you and your witnesses sign an affidavit (sworn statement) before a notary public, you can help simplify the court procedures required to prove the validity of the Will after you die.
Q: Do I need to file my Will with a court or in public records somewhere?
A Will doesn't need to be recorded or filed with any government agency. Just keep your Will in a safe, accessible place and be sure the person in charge of winding up your affairs (your executor) knows where it is.
Q: Where should I keep the Will?
Most Wills are retained either by the law firm who prepared the Will or at the residence of the person who made the Will.
Most law firms that hold the Will in safe keeping do so free of charge. The Will can be picked up by you at any time or the law firm can send the Will to you upon receiving a written letter to this effect from you or your executor upon your death. This is a relatively safe procedure. You should verify, however, how the Wills are stored, that is, whether the Wills are stored in a Vault or in a filing cabinet at the law firm. Your decision should be governed accordingly.
Cole Funeral Services recommends that you do not leave the Will at your residence. Not only is it susceptible to theft, but in the event of a fire, you and your Will are unavailable. This is clearly not what you intend. We also do not recommend that you keep your Will in a safety deposit box. Keep the Will in any other secure place and ensure that your executor is aware of its location.
Q: What is the basis for a Will to be contested?
Most of the challenges to invalidate Wills are by potential heirs or beneficiaries who got little or nothing. Questions on the validity of a Will must be filed in probate court within a certain number of days after receiving notice of the death or petition to admit the Will to probate.
The typical objections:
- The Will was not properly drawn, signed or witnessed, according to formal requirements
- The decedent lacked mental capacity at the time the Will was executed
- There was fraud, force or undue influence; or
- The Will was a forgery.
If the Will is held invalid, the probate court may invalidate all provisions or only the challenged portion. If the entire Will is held invalid, generally the proceeds are distributed under the laws of intestacy of the probating state or province.
Needless to say, if there is even the possibility of a Will contest, an experienced probate lawyer is a must.
Q: What is my child has special needs?
If you have a child with special needs, ensure that you relay this information to your lawyer. You may wish to set aside a sum of money to deal with this issue. This is often addressed in the Will by establishing what is known as a Trust Fund. After the payment of all debts, the Trustee who is appointed under the Will to receive funds will be directed to use a certain amount of money from the Estate for the "special needs" person who is referred to as the Beneficiary. It is very important when a Trust Fund is established under a Will that you receive competent legal advice. The amount of the Trust Fund may be large if the child is to be looked after for an extended period of time. You must be sure that the Trustee (the person who administers the Trust) is not only trustworthy but not of an age that the Trustee will likely predecease the Beneficiary. The Trust must have a provision for the replacement or addition of other trustees over time, if required.
Q: How do I choose a guardian?
If you have young children, you should choose a personal guardian -- someone to raise them in the highly unlikely event you can't.
If your children are young, you've probably thought about who would raise them if for some reason you and the other parent couldn't. It's not an easy thing to consider. But you can make some simple arrangements now that will allay some of your fears, knowing that in the highly unlikely event you can't raise your kids, they will be well cared for.
All you need to do is use your Will to name the person you want to be the "personal guardian" of your children if one is ever needed. Then, if neither you nor the children's other parent can raise them and a court must step in to appoint a guardian, the judge will appoint the person you nominated in your Wills (unless, for some reason, it is not in the best interests of your children).
If you don't name a guardian in your Will, anyone who is interested can ask for the position. The judge then must decide, without the benefit of your opinion, who will do the best job of raising your kids.
Probate is the process that transfers legal title of property from the estate of the person who has died (the "decedent") to their proper beneficiaries.
The term "probate" refers to a "proving" of the existence of a valid Will, or determining and "proving" who one's legal heirs are if there is no Will. Since the deceased can't take it with them, probate is the process used to determine who gets their property.
Property left through a Will usually must spend several months or a year tied up in probate court before it can be distributed to the people who inherit it.
Probate is not cheap or quick. Because probate requires a hearing in over-burdened courts, the process can tie up property for a year or more. In addition, probate may be expensive. Estate attorneys, who sometimes charge a flat percentage or a high hourly rate, usually handle probate. Their fees and court costs may cost 5 percent of the estate's value. A Will is a very personal document, and may reveal private family and financial issues and concerns. But once it is entered into the court record, it becomes public, and can be inspected by anyone.
- What is probate?
- Why is Probate necessary?
- How long does Probate take?
- What is the probate process of an uncontested Will?
- Who is responsible for handling probate?
- Should I plan to avoid probate?
Q: What is probate?
Probate is a legal process where your named executor goes before a court and does several things:
Identifies and catalogs all property owned by the deceased.
Appraises the property, and pays all debts and taxes.
Proves that the Will is valid and legal, and
Distributes the property to the heirs as the will instructs.
Typically, probate involves paperwork and court appearances by lawyers. The lawyers and court fees are paid from estate property, which would otherwise go to the people who inherit the deceased person's property.
Probate usually works like this: After your death, the person you named in your Will as executor -- or, if you die without a Will, the person appointed by a judge -- files papers in the local probate court. The executor proves the validity of your Will and presents the court with lists of your property, your debts, and who is to inherit what you've left. Then, relatives and creditors are officially notified of your death.
Q: Why is Probate necessary?
The primary function of probate is transferring title of the decedent's property to their heirs and/or beneficiaries. If there is no property to transfer, there is usually no need for probate.
Another function of probate is to provide for the collection of any taxes due by reason of the deceased's death or on the transfer of their property.
The probate process also provides a mechanism for payment of outstanding debts and taxes of the estate, for setting a deadline for creditors to file claims (thus foreclosing any old or unpaid creditors from haunting heirs or beneficiaries) and for the distribution of the remainder of the estate's property to one's rightful heirs.
Q: How long does Probate take?
The duration varies with the size and complexity of the estate, the difficulty in locating the beneficiaries who would take under the Will, if there is one, and under state law.
If there is a Will contest, or anyone objects to any actions of the Personal Representative, the process can take a long time. Some matters have taken decades to resolve.
Q: What is the probate process of an uncontested Will?
Typically the person named as the deceased's personal representative (a more formal term is "executor" or "executrix") goes to an attorney experienced in probate matters who then prepares a "Petition" for the court and takes it, along with the Will, and files it with the probate court.
The lawyer for the person seeking to have the Will admitted to probate typically must notify all those who would have legally been entitled to receive property from the deceased if the deceased died without a Will, plus all those named in the Will, and give them an opportunity to file a formal objection to admitting the Will to probate.
A hearing on the probate petition is typically scheduled several weeks to months after the matter is filed. Depending on the state, and sometimes who the named beneficiaries are, how long before the death the Will was signed, whether the Will was prepared by an attorney, who supervised the "execution" of the Will, and/or whether the Will was executed with certain affidavits, it may be necessary to bring in the persons who witnessed the deceased's signature on the Will.
If no objections are received, and everything seems in order, the court approves the petition, appoints the Personal Representative, orders that taxes and creditors be paid, and requires the Personal Representative to file reports with the court to assure all the deceased's property is accounted for and distributed in accordance with the terms and conditions of the Will.
Q: Who is responsible for handling probate?
In most circumstances, the executor named in the Will takes this job. If there isn't any Will, or the Will fails to name an executor, the probate court names someone (called an administrator) to handle the process -- most often the closest capable relative, or the person who inherits the bulk of the deceased person's assets.
If no formal probate proceeding is necessary, the court does not appoint an estate administrator. Instead, a close relative or friend serves as an informal estate representative. Normally, families and friends choose this person, and it is not uncommon for several people to share the responsibilities of paying debts, filing a final income tax return and distributing property to the people who are supposed to get it.
Q: Should I plan to avoid probate?
Probate rarely benefits your beneficiaries, and it always costs them money and time. Probate makes sense only if your estate will have complicated problems, such as many debts that can't easily be paid from the property you leave.
Whether to spend your time and effort planning to avoid probate depends on a number of factors, most notably your age, your health and your wealth. If you're young and in good health, a simple Will may be all you need -- adopting a complex probate avoidance plan now may mean you'll have to re-do it as your life situation changes. And if you have very little property, you might not want to spend your time planning to avoid probate. Your property may even fall under your state's probate exemption; most states allow a certain amount of property to pass free of probate, or through a simplified probate procedure.
But if you're older, in ill health or own a significant amount of property, you'll probably want to do some planning to avoid probate.
Cole Funeral Services:
2500 Baseline Road,
Ottawa, Ontario K2C 3H9
Telephone: (613) 831-7122