Executors are eager to get off to a good start. They dive into estates. However, they need to test the water before jumping in head first. They can avoid grief with proper legal advice. I am an estate lawyer and start by asking executors these ten questions. My advice always depends on the answers I receive.
1. Is there a possible will contest?
Can the will be contested by a disgruntled beneficiary or relative? If the answer is yes, a court can stop you from acting as executor. You then have no legal authority to act if the will is contested.
Lawyers can advise executors if wills meet the formal legal requirements. If they do not satisfy these tests a will is not valid.
Even a will that’s missing a few words can create problems.
Recently a will ended up in court. Chuck, the will maker, gave away cash gifts of $5,000 to each grandchild. But Chuck forgot to state who would get the balance of the estate. Because the will failed to give away the estate residue a court case was started.
These problems can lead to a day in court before a judge. Possible will challenges affect how executors handle their estate work.
2. Was there a divorce or marriage?
A divorce or marriage can cancel or change certain will terms.
You must know if a marriage or divorce occurred after the will was signed. This can cause an executor to play detective searching for clues. Where is the divorce decree? Who was the divorce lawyer? Was there a court order for support?
3. Are there written agreements affecting the will?
These legal agreements can conflict or change the terms of the will. It is important to review any legal contract including:
• separation agreements,
• prenuptial, cohabitation or domestic contracts
• shareholder or business buy /sell agreements
Wills are often out of date. They may not reflect such agreements made after the will was signed. These agreements can change a person’s legal rights and obligations.
4. Are there other spouses?
Spouses or dependents receiving support have rights to trump a will. They can sue for more than what is in the will. Today, people can have several spouses.
Blended families are common. People cohabit and do not divorce. They can be separated from a legal spouse and also live with a common law partner.
If spouses are not provided for they can sue the estate. They can make claims to property and for support. These claims can override what is in the will.
5. Are all beneficiaries named in the will still alive?
Beneficiaries who were to receive a gift may have passed away. What happens then? Who gets the gift under the will?
Executors will need legal advice to answer these questions. This advice depends on local laws and the wording in the will.
6. Are there alterations on the original will?
Say someone scratched out the words “Janet Smith” on the will. They changed her name to “Janet Jones.” This change may affect the validity of the will and who receives the gift.
7. Did anyone already receive their gifts under the will?
What if Uncle Bob gave Ida a cheque for $20,000 in the hospital before he died? Was this the $20,000 Ida was supposed to get under Bob’s will?
Should you, as executor, give Ida another $20,000? How do you make sure you do not over pay Ida?
8. Were you given conflicting instructions?
Terry told you what he wanted you to do for his family. Terry’s will gave you different instructions. You were told to give all the jewellery to a favourite niece. However, the will does not specifically mention the jewellery or the niece. You can’t decide to do without legal advice.
9. Are any assets no longer in existence?
Uncle Bob also gave Ida his piano. However, the piano was sold with the uncle’s house. What happens when an item has been sold or no longer exists? The piano could have been given away before the will was read.
Does Ida have grounds to complain? Does the executor owe her a new piano?
10. Who owns any jointly owned assets?
What do you do with joint bank accounts or jointly owned property? Joint bank accounts are a nightmare. In many estate cases executors end up suing the other joint owner.
Things are not often as simple as they first appear. Executors may need to claim the property for the estate.
Executors need lawyers to answer these ten questions. Use an experienced estate lawyer before you make an expensive mistake.
Not all lawyers have estate experience. They may not understand why these questions matter
Executors may not realize what can go wrong. They need answers to such questions to avoid problems. Failing to get answers can derail an estate administration and put executors at risk.
Edward Olkovich (BA, LLB, TEP, and C.S.) is an Ontario lawyer, nationally recognized author and estate expert. He is a Toronto-based Certified Specialist in Estates and Trusts Law. Ed’s law firm website is MrWills.com © 2014