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Sunday, September 17, 2017

Taking the financial reins from Mom and Dad

Many people think of estate planning as making a will, but that's only part of it. The other important part is making documents that plan for losing your mental capacity. Sure, it's not the most fun thing to think about but it's certainly better than the situation occurring while you're unprepared. The incapacity documents are the Enduring Power of Attorney and a healthcare directive.

Adult children who are appointed under the Enduring Power of Attorney have to adjust to the role reversal. Now they have to parent their parents. Those who haven't been through it perhaps don't understand what the process is like.

I've just read a good article about taking the financial reins from your parents at www.financialplanningforcanadians.ca. Click here to read it. By the way, there are lots of other really good articles about money and planning on that site, so take a look around.

Saturday, September 16, 2017

Mom left me the house. What do I owe my brothers?

There is an interesting article in www.nytimes.com that caught my eye. The column is not written by a lawyer, but by someone who is called an ethicist. I'm not sure that's a real title but clearly it indicates that the column is intended to be about moral rather than legal rights. It gives an added dimension to how I usually think about inheritance issues. It might give you added perspective, too.

A question was asked by a 60-year-old person who inherited the house from his mother and is now being threatened with a lawsuit by his siblings. Certainly a situation I've seen many times.

If you're interested in what an ethicist rather than a lawyer would counsel this person to do, click here to read the article.

Thursday, September 14, 2017

Wills Week is approaching: speakers are invited to participate

We're in the process of setting up our third annual Wills Week event. It just gets bigger and better every year. This year we are doing something completely new - a Wills and Estates Trade Show! The event takes place on Saturday, October 7 from noon to 5 pm at the Capital Hotel in St. John's.

Our goal is to raise awareness of the need for advance planning and to encourage members of the public to get their wills and other planning done properly.

We are compiling a roster of speakers to give 20 to 30-minute talks to the public about various topics relating to wills, probate, estate administration, estate planning, charitable giving, and anything else related. We have three confirmed and a few in the discussion stage, but have space for at least two more. If any readers are interested in speaking, let us know by emailing Chelsea Kennedy at chelsea@butlerwillsandestates.com.

Each of the speakers will also get to host a booth. We are limiting the number of booths to 10 and are giving exclusivity to the first person or group in each industry. For example, the first funeral company that is confirmed will be the only funeral company at the event. We have a couple of booths left and welcome lawyers, accountants, appraisers, realtors, funeral homes, etc to get in touch if they'd like to join us. Email Chelsea at the address above to find out about the cost. Non-profit groups may participate at no cost.

At the booth, the hosts can meet members of the public, talk about their services, offer discounts, give out materials, or simply make people aware of them. It's a great way for people in the industry to meet individuals and families who are interested in finding out more about their services.

We have two types of  packages available, one of which includes a guest spot on The Law Show.

The public will be invited to attend the event for free. We have already begun our promotion of the event by talking about it weekly on our radio show, placing posters, talking about it in our monthly newsletter, and telling all of our clients about it. We'll continue to use those methods as well as social media to help ensure a great turnout.


Monday, September 11, 2017

How to handle a belligerent beneficiary

One of the regular readers of this blog (I'm looking at you, webeye) suggested the following article to me. Though the article is American, the ideas in it translate into our system pretty well. In it, the author talks about demanding beneficiaries becoming belligerent beneficiaries, and how he handled it when it happened to him. Let's face it; not all beneficiaries are rays of sunshine! Click here to read the story from www.thecommonexecutor.com.  Keep in mind as you read it that the author isn't a lawyer, but someone who has been through the experience of being an executor.

Friday, September 8, 2017

Nine years ago, father died leaving a will. Now the will can't be found and property needs to be sold.

What happens if you don't deal with an estate for years after someone passes away? As this reader's question shows, delay can lead to problems.

"My father passed nine years ago. He had a will and everything went to my mother. Now my mother wants to sell the property but it's still in my father's name. It was never put in her name. Neither the will nor the lawyer can be found. How can my mother sell the property?"

It's not unusual at all for widows and widowers to neglect to take their spouse's name off the property. It's not a good idea to put these things off, as your question clearly demonstrates, but as I said, it happens a lot. Sometimes it's because the widowed person is fully occupied trying to cope with the loss of their spouse and adjusting to their new reality. In other cases, they would have taken care of the name change on the property had they only known about it.

Your mother cannot sell the property without transferring it into her name first because otherwise it's not hers to sell. She will most likely have to apply to the court for probate of the will in order for the land titles office or land registry to transfer the title to herself.

That brings us to the question of where the will might be located. I'll assume that your mother has already searched in all of the likely places with no luck. Have you checked with the probate court to find out whether the will has been through probate? That could be why the will cannot be found anywhere else. It's worth a call or trip to the probate clerk's office. Finding that the will had already been sent for probate would be the best possible outcome here.

Finding the lawyer might easier than finding the will. Has your mother contacted the Law Society of the province in which the lawyer practiced? The Law Society issues the lawyer's license to practice and therefore usually knows where lawyers are. Most Law Societies have a searchable roster of lawyers online that you can check. If you can't find the lawyer on the online roster, call the Law Society and ask about him. You might find out that the lawyer moved, died, or retired. In such case, ask what happened to his files. The lawyer might have had partners in the firm who still have the files, or the Law Society might have appointed a custodian for them.

If the will simply cannot be found, your mother will most likely have to apply to the court to be the administrator of the estate in order to gain the legal authority to deal with the property. That is not particularly difficult to do. The issue is going to be how the property must be distributed. Even though your father had a will when he died, that will cannot now be produced or proved. This raises the question of whether intestacy law must apply.

In most provinces, the spouse of the deceased person must share the estate with the children. This could mean that the house does not go to your mother. There are a lot of factors to take into consideration, the biggest of which is the province of residence. Other relevant considerations would be the value of the property and of other assets (if any) in the estate.

Another factor that comes into play is whether the property you're talking about is the matrimonial home that your parents lived in. In many provinces, there is legislation that gives the matrimonial home to the surviving spouse no matter whose name it was in. That would by-pass the intestacy law provisions.

Because there are so many factors to consider, I  don't think it's a good idea for your mother to try to deal with this situation without a lawyer.




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