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Thursday, December 2, 2010

How and when to set up an estate bank account

Most executors and administrators of estates will at some point set up a bank account for processing financial transactions on the estate. Even when an executor or administrator has hired a lawyer to apply to the court for probate or administration, he usually still has to set up an account. The alternative is to run all transactions through the lawyer's trust account, which becomes expensive.

When the account is opened will depend largely on whether you are an executor (i.e. appointed by a valid will) or an administrator (i.e. appointed by the courts in the absence of a valid will). An administrator has no authority whatsoever to take charge of the deceased's money until he or she is appointed by the court. In other words, he or she can't open an account until the court provides them with a document putting them in charge.

If you're an executor, however, you can open the account at any time once you take charge of the estate. Your authority to do this comes from the will, not the probate. The name on the account should make it clear that this is not your personal money and that you are holding it in the name of the estate. If the deceased is John Smith and you, the executor or administrator, are Mary Smith, the account should be called either "The Estate of John Smith" or "Mary Smith, Executor of the Estate of John Smith".

Executors usually don't wait for the court to issue a probate document before opening the account. While the probate application is being processed, you, as executor, will usually apply for the CPP death benefit, collect any outstanding wages, benefits and refunds, and pick up any cash lying around the deceased's home. All of those things and more may be deposited into the estate account before the grant of probate is issued. As time goes on, you will add other assets to the account, such as when you cash in GICs, sell the deceased's home or transfer over the proceeds of the deceased's bank account.

If you receive cheques made out to the deceased person, they don't have to be re-issued to the estate. They can be deposited to the estate account as they are.

119 comments:

  1. Great article. Do you mind if I place your article on my blog and reference your site to it?

    Cheers,
    Larosabelle

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  2. Hi Larosabelle,
    Thanks! Please go ahead and post it. By the way, I checked out your site and it's really unique and interesting.

    Lynne

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  3. Is this a special category of account at the bank or can one just open a regular bank account with the name on the account as you've described above. My mother's will has her 3 children as executors. I'm assuming all 3 should be signatories?

    Marsha

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  4. Hi Marsha,
    The account you need is just a regular chequing account. Yes, all executors' names must be on it. All decisions of joint executors must be made unanimously, so all three will have to sign all cheques.

    Lynne

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    1. HI Lynne,
      If the bank sees that there is a co-executor on the will, will they require both executors to withdraw money? What if my sister didn't put my name (co-executor) n the account? Is this an honour system, or does the bank verify estate accounts by looking at the will?

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    2. Both executors should be on the account. I certainly hope that the bank will verify by looking at the will, as this is what they are supposed to do. This sounds like an error to me, so you might consider contacting the manager of customer service at the bank and showing him/her a copy of the will, and asking that the account be properly set up.

      Lynne

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    3. Lynne- Using the example from Marsha: Can the account have links to automatic bill payments with registered companies, so all three trustees don't need to be in person to pay every single bill?

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    4. Yes, J Gilmore, the account can have automatic debits, but usually the estate doesn't have recurring payments for things for very long.

      Lynne

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    5. Thanks Lynne! My context for the question was a little different: an estate account with two trustees specified in the will who are to pay bills for someone in a house who is not being given direct access to the money.

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    6. Hi Lyne
      I am the executor of my mother's estate . recently received a cheque made out to the estate and attention of me"Jane Doe" can I deposit this cheque into my personal account or does it have to be deposited intorbhe estate account. Also I was named sole beneficiary of this cheque (insurance claim)

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    7. Hi there my husband and deseaesed father in law had a joint account together now my FIL didn't have a will..can he still deposited life insurance cheques into the personal account (only child) or will he still have yo open up a estate account ?will our lawyer still have yo go to court to make him executar of estate? FIL was not natt8ed

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    8. Julie, what does "FIL was not natt8ed" mean?

      Lynne

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  5. I attempted to open an estate bank account along with my co-executor and was told I would have to wait until the Court issues the probate letters. Are there restrictions or did I just draw an uninformed bank employee?

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  6. My recently deceased mother had create a trust through Wood Gundy for my daughter to help her through university. The trust now holds $75,000. As the executor I am just starting the estate work. Does this trust belong to my daughter, or is it part of the estate, and therefore to be caught up in limbo during the probate? Does my daughter have to pay taxes on this as income for the year? If so, it will pose quite a hardship on her as a student. My mom's estate is about $325,000 cash, which is being managed by Wood Gundy. Please advise.

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  7. I am the executor to my deceased elder sister's estate. I just received a cheque refund (a small sum of less $100) issued to her estate. My question is, do I need to apply for a probate grant before I go to a financial institution to open an estate account? Or I could simply present a copy of the Will to the financial institution that I am the executor? Please advise

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    Replies
    1. No, you don't have to wait for probate. Take the will, a copy of the death certificate (or funeral director's statement) and your I.D. to the bank and they should open the account with no problem. Your authority comes from the will, not the probate.

      Lynne

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  8. My dad passed away and has no will, no assets, no liabilities, no bank account. I am an only child. Received his last Canada Pension cheque, issued in the month of his passing but am unable to cash it. Can I open an estate account and deposit his cheque into it. What do I need to do to prove that I am the only beneficiary?
    thanks.

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  9. My mother-in-law passed away one month ago, she was in an assisted living apartment. She had no assets other than a savings account. Our lawyer said there was no need to probate as the will clearly spells out who the beneficiary is and there is only the savings account which would be used to pay expenses and the rest to the beneficiary. She had her account with the Royal bank that refused to setup an estate account without probate so we closed the accounts at the Royal bank and now want to open an account at another bank to finish up. Other banks are also refusing to open estate accounts. We have cheques to deposit, but don’t know where to put them now. Can we just deposit the cheques in our own account? There are only two cheques to deposit and she never paid taxes, only received refunds due to low income.

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  10. Royal bank will not allow me to open an Estate bank account, without a probated Will. The other financial company with all the investments left, did not require probate and it was a significant sum.

    What are the alternatives if a bank will not open an estate bank account without probate? Lawyer Trust account and then endorse deposits to it and then disburse through it?

    Look forward to some feed back and thanks.

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  11. Well, I posted the above,on July 16tth along with the other person who also had issues with Royal bank on July 8th.

    I have since gone to CIBC and they had no issue with helping me without probate.

    I opinion, you don't go to RBC if you have a non-probated Will. Waste of time.It takes sometimes up to a year or more to probate a Will, but bills need to be paid before that. THe big risk is, if a testamentary trust is involved, as there are deadlines that might be missed and taint the trust.

    Hope this helps others who deal with RBC regarding non probated wills.

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  12. Hi,

    I'd like to know if it is absolutely required for an estate account to be made.
    My grandmother passed away and there are only two beneficiaries, my mother and I. What is the harm of just dividing the money between the two of us and paying the last few estate bills from our own accounts?

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  13. Is there a time limit on how long an estate account can stay open? I am executor for an estate of someone who lived and died in Alberta. I opened an estate bank account in BC where I live.

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    Replies
    1. No, there is no time limit specified anywhere. However, keep in mind that as an executor, your obligation is to wind up the estate as efficiently and quickly as possible. The money belongs to the beneficiaries, and they have every right to insist that you disburse it (once taxes and bills are paid, of course). Keep the concept of the executor's year in mind. If you haven't wound up the estate in a year and there is no good reason for it, you could end up in a dispute with the beneficiaries and possibly in court.

      Lynne

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  14. I am the executor of my uncle's estate. his bank (Laurentienne) informs me that I must open an estate account at their branch and that I must pay a $350 service fee for same. My bank, BMO, charges nothing for an estate account. Can Laurentienne refuse to transfer the funds from my decesased uncle's account to BMO?

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    Replies
    1. I'm not aware of anyone charging a fee of $350 for an executor's account either, so I can't explain the rationale behind it.

      As long as you have properly been appointed by the will as the executor, then the bank must release the funds to you.

      Lynne

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    2. Based on your comment in the second paragraph, how would this apply to funds held with a financial institution in an investment account?

      If I am executor of my father's estate, and he had an investment account of $500,000, does the financial institution have to pay it out to me as executor if I instruct them to?

      Isn't it basically standard practice for them to require a probated will before they will liquidate an investment account?

      Thanks.

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    3. They will not liquidate any account of any kind worth $500,000 without either probate or Letters of Administration. It's not because it's an investment account, but because of the value.

      Lynne

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  15. I am sole trustee on an estate, appointed by Superiour Court (Ontario). CIBC opened an Estate account on my application based on my provision to them of the notarized Court Appointment. CIBC requested personal ID documentation for each and every beneficiary on the account which I supplied although I was hesitant to believe the Money Laundering Act actually requires it. CIBC are certainly entitled to require my ID as sole trustee. All the estate assets have since been liquidated and deposited to the CIBC estate account, and now CIBC has locked the funds and is refusing to distribute the funds until such time as each and every beneficiary appears at a branch of CIBC, identifies themselves with the previously provided ID's and signs the account application. As trustee, I am unable to distribute or transfer the funds of the Estate. I have dealt with two CIBC staff and have been promised a CIBC Manager but no Manager has yet contacted me.

    Is CIBC correct in making asserting they are making lawful requests identification of beneficiaries and for requiring each and every beneficiary to appear at a CIBC branch, identify themselves and completing account application forms?

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  16. my father passed away and only had $960, which was held in trust by an organization. My father was a street person, so they helped to budget his money. They gave me a cheque for that amount made out to the estate of my dad. My dad had no will, no spouse and i am his only child. Will i need a letter of administration to open an estate account or will my bank let me sign a letter of indemnity?

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    Replies
    1. Hi Bob,
      I would be very surprised if the bank did not allow you to sign a letter of indemnity under the circumstances. Their concern is allowing money to be paid to someone, then finding out later there were other beneficiaries that should have been included. Given that there was no will, no spouse, and no other children, the chances of anyone else appearing are next to nothing. Make sure the bank realizes that this is the only asset of the estate.

      Lynne

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  17. If the executor is the beneficiary can they then use the estate funds for personal since all financial obligations will come to them anyway?

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  18. Hi Lynne,

    If the executor is also the beneficiary do they get access to the funds right away since the financial obligation will come to them regardless?

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    Replies
    1. An executor can never use estate funds for personal spending. Ever.

      The executor must wait along with everyone else for the estate to be wound up to get his or her inheritance.

      Either you are mistaken about the financial obligations of an executor, or I'm reading your question incorrectly. The financial obligations of an estate do not "come to" an executor personally. The debts of an estate are paid only to the extent that the estate (NOT the executor) has the funds to pay them.

      So, yes the executor does have access to estate funds right away, but no, a beneficiary does not. When they are one and the same person, the executor must only use the estate funds to pay estate costs and debts. Doing otherwise is theft or fraud.

      Lynne

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  19. T. O'Hearn, OttawaAugust 9, 2014 at 4:34 AM

    How long should it take for a bank to open an estate account? My mother passed away in April, and I met with her bank on April 26 primarily to be sure no further deposits were made. I also wanted to be sure her remaining bills were paid (less than 1K).

    In July I received a notice from one company that the account had been sent to a collection agency. I informed the branch manager, who did pay her outstanding accounts directly. On July 21, I escalated my complaint to that bank's ombudsman. I was advised around that time by the branch manager that an account estate should be opened by the first week of August.

    It is now August 8 and there is still no estate account. Her affairs are simple and the estate is modest. I am her executor and sole beneficiary. No probate is required. I think I have been reasonable, but am now also very unsatisfied by the response by the ombudsman's office and told them that when they called yesterday to 'loop back' on my complaint.

    In reading their most recent annual report, the office of the ombudsman outlines the complaint process and time for resolution. Their process says I should have received a written agreement that is to be signed and returned to them. I have not received anything in writing other than a few emails. They also commit to resolving complaints within 90 days, which would take the matter to the end of October. I don't need the money but want this to be resolved. Every time I get another unsatisfactory response causes more stress at an already difficult time. Any advice you may be able to offer would be appreciated.

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  20. Hello Lynn,

    Is an executor allowed to pay expenses out of the estate account prior to probate being granted? My financial institution says that they are not allowed, but will make concessions for burial costws and probate application only. My father's house needs to be sold, we have to keep hydro on. What if there was a mortgage on the property (there isn't). I am just not sure how this is supposed to work?? Does the executor pay out of pocket?

    I would really appreciate your help.

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    Replies
    1. Your bank is doing what any bank would do in the circumstances. You have to remember that although the executor has an obligation to look after the house, the bank does not. Their job is to hand over the account once probate has been granted. The probate is their indemnity against the deceased's funds to the wrong person. As far as the bank is concerned, your father's account is still HIS account and not an estate account until the probate has come through.

      Paying out of pocket should be the last resort. Use any other estate funds you have been able to gather, such as the CPP death benefit or the sale of household contents. Just be sure to keep detailed records of what came in and how you used the funds so that you can explain it all later.

      Lynne

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  21. My mother was killed suddenly and although she requested I be her executor she neglected to sign her will properly. My three sisters and I are the beneficiaries, however my mother had no assets and lived with us. I have just received her CPP funeral benefits paid to the estate as we were unaware her will had not been signed correctly until after the funeral. How do I go about cashing this in to divide amongst our family?

    Tammy

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  22. Can the estate lend money to the executor who pays interest on it to the estate at the same rate the money is now receiving in a GIC? The executor is also a 50% beneficiary of the estate and the amount of the loan is less then 15% of the value of the estate. The loan would be repaid with interest before the final disbursements.

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  23. My Dad just died and he had 2 bank accounts with myself as co-owner with right of survivorship. If I open an estate account and deposit the funds from both accounts(100,000) dos that account have to be probated?

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    1. Yes, I would expect that you would have to obtain probate to deal with the account, due to the high dollar value. The problem with joint accounts between parents and kids is that the banks are really inconsistent in their treatment of them. In my view, you are doing exactly what is supposed to happen - even though the accounts are in joint names, you are treating the accounts as assets of the estate. This is what the law says you are supposed to do. As I said, not all banks are responding properly to the change in the law (from 2007) and some are paying out joint bank accounts between parent and child to the child. They will continue to do this until a beneficiary sues them. I doubt you want the estate you're working on to be that case, so you are acting properly. Because these accounts are assets of the estate, you will have to get probate to distribute them.

      Lynne

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    2. If you are a co-owner with right of survivorship then the assets become yours automatically upon death and are not part of the estate.

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    3. That is not the law any longer, when we are talking about inter-generational accounts. The only reason that some banks are still paying out joint accounts to the kids is that nobody has sued the banks yet. It'll happen. Then all of a sudden none of the kids will get the joint accounts any more.

      Lynne

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  24. Why is the bank refusing to add my name as the administrator to my sister's estate bank account?‏ It's already hard enough losing a loved one but to not be able to manage her estate on behalf of her son is difficult when I've been appointed by the court and provided the document to the bank. There is still estate activities going through her bank account and I recently switched her mortgage company. The new mortgage require the pre-auth form to be from an account with my name as the administrator to my sister's estate. But the bank refuse to do this. I want to ask my question to the bank but can I get your consent first? I would like to reference your site to them. Please let me know.

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    1. Your question is why the bank is refusing to add your name to an estate bank account. If you are the administrator, who has set up the estate account?

      Is the account actually an estate account, or is it simply your sister's account that was in place at the time she died? If it is simply her account, then you need to close it and open an estate account in your name as administrator. You can't just add your name to an existing account, as that would suggest that your sister is alive and you two are joint owners, which obviously cannot be the case.

      This is the only thing that makes sense to me in the context of your question.

      Lynne

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    2. Let's say my sister's name is Jane Doe and I'm Sara Smith. My sister had a chequing account and she passed away without a will 7 years ago. When the court appointed me as the administrator, her bank account changed from Jane Doe to Estate of Jane Doe. Currently, I'm asking the bank to add my name by changing the account to Sara Smith, Administrator of the Estate of Jane Doe and they said no. I asked if i can close the account and open one that says Sara Smith, Administrator of the Estate of Jane Doe and they said no. I went to another bank and they also said no. I was told I would have to open a personal account in my name. So i'm very confused.

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    3. I think your bank is making an error. You were correct when you suggested an account set up as "Administrator of the estate of Jane Doe". Working with banks can be tricky, because they don't offer their employees much training with respect to estates. I know this because I spent 7 years at Scotiabank doing whatever I could to help out the front line staff dealing with estates. If the person you're dealing with cannot do as you ask, try talking to the branch manager. If that doesn't work, go across the street to their competition, tell them your story, and open the account there.

      Lynne

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  25. My sister and I are co-executors of our fathers will. We are also the only two beneficiaries. My sister lives in the same province as my deceased father. When the final payouts are made after the tax clearance certificate is received. Will I have to fly to that province to sign the cheques or is there something that is sent to the bank to release the cheques with only one signature?

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    1. The bank will probably insist on having both signatures if the account is set up to require both signatures. An alternative might be to purchase bank drafts rather than cheques. If that doesn't work, it would be way cheaper to courier the cheques to you to sign and send back, rather than fly there.

      Lynne

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  26. My husband recently died before he could receive (as sole beneficiary) money from his mother's estate who had predeceased him by 2 years. Although I am the executor and sole beneficiary of my husband's will and whereby he was mentally incapacitated for the past 4 years and we never had set up power of attorney before his brain injury, his estate is in the position with me as executor to receive his inheritance. The lawyer handling his mother's estate wants to write the cheque to my name with Executor of the Estate of (my husbands name). Will I need to go to a bank and set up an estate account and can I do this without needing probate? I will likely receive a company pension retroactively owed to my husband. Everything else of my husbands, all accounts, homes,, RRSP's etc. was all joint or myself as designated beneficiary. I don't want to probate because our wills were joint as was everything in our lives.

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    1. Hi Linda,
      The cheque should be written to you as executor, as the lawyer has suggested. Yes, you should should go to the bank to set up an estate account, and no you shouldn't need probate to do that. Not every will is probated, and the banks are well aware of that, particularly if some of your joint assets were held there. Other things might also flow through that estate account, such as the CPP death benefit.

      If you don't have to go through probate, then by all means, don't. It's just an expense and a bother if it's not needed. However, what do you mean by joint wills? The only joint wills I've ever heard of are the kind where there is only one document shared between two people, and those haven't been done for about 50 years in most of Canada. Or do you actually mean mirror wills?

      Lynne

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  27. A friend passed and named myself or my husband executor and also sole beneificiaries. The house had a secured LOC on it and we handed over the keys after telling bank no more payments would be made on LOC. I was initially executor and stepped down due to personal reasons. I have had a couple cheques come to me for the estate. I went to deposit them and was told by CIBC that they drained the account and closed it 5 months after death? The bank had a copy of the will and death certificate .. now what do I do with these cheques I recently got?

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    1. I hope that things weren't as loosely organized as your letter suggests. A will cannot name you "or" your husband as executors. Either you were joint executors, or one was named executor and the other as alternate. Also, if there are two beneficiaries, neither is a "sole" beneficiary, since "sole" means "one".

      When you stepped down, I assume that you did so with the permission of the court, as that is the only legal way a person acting as executor can step down. On the other hand, if you stepped down properly, who became the executor in your place? Give the cheques to that person. Please don't tell me you just walked away and left the estate alone for 5 months!

      If you did not obtain the permission of the court to step down, you are still the executor. If the account is closed, you have to open a new one, as you have a legal obligation to deposit them and use them to pay any outstanding debts of the estate.

      Lynne

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  28. Once everything is in order - do the beneficiaries receive there funds retroactively from date of loved ones death? Or do they receive (in my case, beneficiaries are to receive monthy from estate) beginning when the funds are ready to be dispursed?

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  29. Hi Lynne.
    My mother passed away in September and my brother and I are co executors. All of her finances had us listed as 50/50 beneficiaries and have been paid out to us, including her bank account of 24000. The only thing going to probate is her house which was only in her name. I just received a govt cheque made out to the estate of my mom care of myself for her OAS payment. What do I need to do with this cheque? Thx

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  30. Sorry....my question is actually can I deposit this cheque to my account or cash it?

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    1. No, I don't think you can deposit it to your personal account or cash it. In law, you have no right to do so because you've been given the cheque as executor, which means it's in trust for the beneficiaries of the estate. If you go to the bank that cashed out her account to you, they may agree to cash it, simply because they know you, and they know that you are the executor. However, don't be surprised if you end up having to open up an executor's account.

      Lynne

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  31. Hi lynne,
    My mother passed away in late October. I am the executor or the estate and the sole beneficiary of the will. The probate has just been completed.The estate is entirely investments with no actual cash other than a monthly dividend cash flow. There is no property involved all all bank accounts other than investments are joint with myself. Do I still need to open up an estate account for tax reasons or other?

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  32. HI Lynn,
    My case is very complicated,it started with the land my mum bought 5 acres of land in Fiji and she got her first cousin Vana to handle things to sell the land which mum got many offers even for $450,000.00 but mum trusted her daughter-in-laws family the lawyer she hired and her cousin in Fiji.when our beloved mother passed away notary Sublock Sublock never even got mum to sigh her Will even though we paid $170 fee for that one home visit Mr.Sublock refused to help us and we sent mum's old Will which was Notarized and the Fiji Courts refused to accept it and my dad was next of kin now they said Vana and fiji lawyer Ulamila Tuipuku said that my dad needs to do a Probate and I sent $3,500 for court/lawyer/probate and months down the road Vana and Ulamila said that the court won't accept the Probate that they wanted her in my Dad's WIll which he "WE HAD A DEAD LINE OR LOSE THE LAND " we said that was crazy and we went through with that and so so and we went through Mr. Sablock again because he had the history regarding the land and my mum's information etc.
    My dad wanted to sell the land because there was squatters on the land and two churches was already built on land without permission and you wonder who was minding the place.
    When I made an offer to a performance on the land Vana was so upset she was yelling and I said okay you have 6 weeks and she said she already had the money and we'll we waited and waited for the paper work.
    When I tried from May 2012 til Feb 2013 to get the lawyer to send papers yo sell the land she was making all kinds of excuses and we sent thousands of dollars for court cases and the land .
    The thing is after my dad passed away the first thing Vana said is remember that I'm the excutor on the Will and no one can go above me and I was do she said none of your kids can go above my head and this just to show she knew what she was doing .
    We'll after all that she said that the land is in her name and the lawyer who was supposed to be working for my dad was working for her and went against both my parents.
    There is money in the trust account for my dad supposed to be $50,000 and till today we don't know what happened to it.
    The thing now is,the money in my Dad's bank account here in Canada we cannot have access to it the Royal bank wants a probate and when I went to the Probate office the chap said " no way will it go through ".
    So what, does the banks in Canada have the rights to our parents money ?
    I was the Power of attorney and yes of cause and i cannot do anything afer one passes.
    Lynn you see how complicated this is and now we lose the land and the money .
    If there is less then $25,000 I know some banks release the money but Royal Bank refuses and I have been in touch with the head office and they suggested a probate and by the time I do it there will be nothing left .
    Please can you help me ?
    Thanks, Roberta

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    1. Roberta, yes I can help you, but not on a blog post. If you want to discuss the case with me, call my office at 79-221-5511 and make an appointment for a telephone conference at your convenience. I charge $400 for that.

      Lynne

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  33. Hi Lynne, I had POA for my mum, who had dementia. When I sold her house after she went into a nursing home, I invested the money in an Empire Life segregated fund contract as her financial advisor suggested. Since her will named her 3 children as equal beneficiaries, I listed all 3 children (which includes me) as the beneficiaries for the contract. Upon her death, the money would avoid probate and be distributed. She died in January, but now Empire Life says that they made a mistake in allowing me (as POA) to name myself as a beneficiary and want to make a cheque payable to the estate. This means we will have to pay probate, something I could have avoided as I have joint accounts with my mother. I have 2 questions. Can I relinquish my claim as beneficiary and have Empire Life send the money directly to my 2 brothers, thus avoiding probate? If Empire Life insists on issuing a cheque to the estate, are they at all obliged to reimburse me for the probate fees I will have to pay on the money (300K) because they made a mistake in allowing the account to be set up that way? Thanks for your help.

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    1. Why on earth do people try so darn hard to avoid probate? It never works when people try to make square pegs fit into round holes by using financial instruments and legal documents to do things they were never meant to do.

      Anyway, enough lecture. On to your question. Empire Life is right, in my opinion. You should not have listed anyone but her estate as the beneficiary of that contract. In particular, you should not have named yourself because someone working under a POA is not allowed to benefit from the position of POA (other than collecting a wage for the work, if allowed).

      I believe you are wrong about avoiding probate because of the joint account. I suggest you read the 2007 Supreme Court of Canada cases called Pecore and Saylor. Since 2007 it has been the law in Canada that joint accounts between a parent and an adult child that were set up for the purpose of avoiding probate are not true joint accounts and must be paid into the estate of the parent. So you couldn't have used that account to avoid probate. I know, everyone thinks that this joint account thing works, but they find out differently when the parent passes away. Instead of avoiding the probate fee, not only does the account still go into the estate, but you may also have to pay for a lawsuit to determine your mother's intention in making the account joint. Again, square peg. A joint account is not meant to be used to avoid probate so the courts have cracked down on it.

      In my view, given all of what I've said here, no, you'd never get them to pay the probate fee. The mistake is just as much yours, as a person under a POA instructing them to do something you weren't allowed to do in the first place.

      I know this probably isn't the answer you wanted, but that's how I see it.

      Lynne

      Delete
  34. Hi Lynne. Once probate is completed and Certificate of trustee is issued does the Executor have absolute control over the Estate bank account, including authority to make dispersals to beneficiaries, be paid executor fees and close the account at any time? Thanks

    ReplyDelete
    Replies
    1. Yes, the executor has complete control over the bank account.

      No, the executor cannot take executor fees until either the beneficiaries agree (usually by signing a release) or the court orders it.

      Yes, the executor can close the account at any time, but it would be pretty unusual to close it if there were still estate funds.

      Lynne

      Delete
  35. Once the letter of probate has been granted and presented to the bank where the estate account has been set up, does the bank have any further right to "approve" payments coming out of the estate account.

    ReplyDelete
    Replies
    1. No. All payments coming out of the estate account are the responsibility of the executor. If anything goes missing, it's all on the executor and the bank bears no blame for it.

      Lynne

      Delete
    2. Dear Lynne, I live in Ontario. My father passed away. There were no investments just bank accounts in both our names, (my father and mine)so the money could pass seamlessly in the event of his passing. I am not the executor, a relative who is a C.A. is, however I am just doing it myself to save money as everything was straight forward and I am paying all bills as they come in. I felt there was no need to probate. So far I have issued one cheque to myself and one to my sister in equal amounts, (as will states it is 50-50 between us) and we are leaving several thousand in the account to cover bills as they come in. Question we have just received a cheque to the Estate of my Father, so don't know what to do with it. Can we open an estate bank account if we did not probate and are not the Executor?

      Delete
    3. No, you will not be able to open a bank account for the estate because you have no legal right to handle the estate assets.

      Lynne

      Delete
  36. I am the executor of my mom's estate. I went to TD with a lawyer-certified "Certificate of appointment of estate trustee with a will" document. It clearly names me as the Estate Trustee. TD bank says it can take "two, three... sometimes even six months" to set up an Estate Account for me. That sounds wrong to me. What's the real deal here? Should I be raising cane at TD?

    ReplyDelete
    Replies
    1. Months? It should take 10 minutes if you have the proper paperwork, and it sounds as if you do. Perhaps you should go to another bank.

      Lynne

      Delete
  37. Hi Lynne, my husband recently passed. He had a will and I am his sole beneficiary. All of our accounts are joint as are any debts ie mortgage and car. I am also sole executor of the will. Do I still need an estate bank account?
    Thank you,
    Tammy

    ReplyDelete
    Replies
    1. I doubt you would need one, simply because there won't be anything to put in there, or anything needing to be paid out of there.

      Lynne

      Delete
  38. Hi Lynne, i am sole beneficiary of my mothers estate. most of her property was gifted to me before her death. but i have a tax refund cheque payable to the estate of xxxxx. it's a small cheque and likely the only one going to be issued to the estate. i still have a joint back account that is open. can i process the estate cheque through the joint account? i have a will, am the executor, and can open an estate account if necessary. if opening an estate account is the route i must take how long before assets can be distributed? must i wait for court probate? how long does that usually take?

    ReplyDelete
    Replies
    1. I would suggest opening an estate account. It is not a good idea to mingle estate funds with personal funds. You don't have to wait for anything but the cheque to clear. If you are not applying for probate for any other reason, I don't see why you would apply for it because of a small cheque. You don't need probate to operate an estate account.

      Lynne

      Delete
  39. I have been named as Liquidator of my ex-husband's estate. He died in Quebec, and the Public Curator there has handled all the paperwork. I just received an insurance cheque made out to " The Estate of ...". does this have to go through Probate? I was told by a lawyer that since the death happened in Quebec (where he was living), that I do not have to put the money through probate in BC

    ReplyDelete
    Replies
    1. No, you should not need probate if the estate was handled in Quebec. Have you taken the estate paperwork to the bank with the cheque? It's not what they're used to, I expect, but the law should not require you to get probate.

      Lynne

      Delete
  40. I am the executor of my father in laws will. I happen to be a beneficery, as well as my 3 kids. I have set up an estate account. There are RSP's that are to be transferred into the estate account to help pay for the funeral. The bank has all information needed, and said that it should only take a day or two to have funds transferred. It has now been a week, and funds have not been transferred. I have been calling the bank, and getting no answer. They also told me that it doesn't matter if the will states that the funds are to be split between myself and 3 kids, that because they have it listed on their system that only the kids are beneficeries, that they have to go by that. I am not happy with RBC at all. Can I take the estate and go to another bank?

    ReplyDelete
    Replies
    1. It seems to me that you are confused about where the various sums of money are going, and you're just putting them wherever you feel like. The bank says that the 3 kids are the beneficiaries of the RSPs so why do you feel that you can legally put that money into the estate account? The RSP is not in the estate if it names beneficiaries. That is why the bank won't help you. They are doing the right thing and you are ignoring how your father in law had things set up.

      Lynne

      Delete
  41. I recently opened an estate account at a bank and they refuse to give me online access. Is this a common practice?

    ReplyDelete
    Replies
    1. No, not that I know of. I certainly know plenty of executors who have online access to their estate accounts. It must be a policy of the particular bank.

      Lynne

      Delete
  42. the bank of the deceased rejected an ATM deposit to the estate bank account. is there any legislation preventing them from doing so? the cheque was made payable to the estate.

    ReplyDelete
    Replies
    1. I don't know of any law that prevents a bank from rejecting any particular ATM deposit. Rather than looking to legislation, it would probably be a better use of your time to go into the bank and have a chat with the manager and see what their policies are.

      Lynne

      Delete
  43. I have been sent a cheque as final payment for caregiving services. The client is now deceased and her power of attorney signed the cheque although I do not believe it was a joint account as only the deceased name is on the cheque. Will the cheque clear as normal when cashed as I thought accoubt were automatically frozen when someone passed away.

    ReplyDelete
    Replies
    1. Accounts are not always frozen. It depends on the situation.

      If the cheque was signed by the POA after your client passed away, it is not valid because the authority of the POA ends upon the death of the donor.

      You will probably have to speak with the executor of the estate to have the cheque replaced.

      Lynne

      Delete
  44. Hello Lynne,
    If an executor is aware that the total value of an estate is over $100k, but values are from multiple sources (i.e. investments of 25k held at multiple institutions), is it right for the bank to request probate for the operation of the estate account?

    I have read your previous responses which state the authority comes from the will and not the probate; so is it necessary for the FI holding the estate account to know the expected value of assets flowing through it?

    ReplyDelete
    Replies
    1. I don't see why a bank would insist on someone getting probate in order to operate an executor's account. All the risk of the account falls on the executor, not on the bank. If you have provided a notarial copy of the will and a notarial copy of the death certificate, that should be enough for the bank to establish that you are the executor.

      Having said that, there could be other factors that might affect the situation (there always are). For example there could be some doubt about the validity of the will or dispute among the beneficiaries about the will. Something like that might make a bank reluctant to accept the will without the backing of the court.

      Lynne

      Delete
  45. Hi Lynne,
    I am being assigned as an executor for my grandma's estate. Several expenses were incurred and paid from my own pocket while waiting for the probate to be granted. I have received the probate, and can access to the Estate bank account, and wonder if I could just go to the bank and withdraw money for my reimbursement? Do I actually need any sort of approval? I have generated expense report for the Estate, would that be sufficient for the bank to issue me payment?


    Thank you

    ReplyDelete
    Replies
    1. You can repay yourself reasonable expenses without any prior approval from anyone. Keep in mind though that when you present your accounting to the beneficiaries at the end of the estate, your expenses must show up there. They can object to them if they think the expenses are inappropriate.

      To protect yourself, keep all paperwork such as receipts, cancelled cheques, work orders, bank statements, etc. You may have to show some of these to justify your expenses in the future.

      Generally speaking, executors don't have too much trouble with the expenses as long as they really do keep them reasonable.

      Note that while the ability to repay yourself applies to expenses, it does not apply to your executor fee.

      Lynne

      Delete
    2. I also meant to add that you don't have to ask the bank to issue your repayment. You tell them. You're in charge of the account, not them. Don't let them dictate what is appropriate for you to do, when you are the only one who bears responsibility for the funds.

      Lynne

      Delete
  46. My father passed away in June. I am executor of the will. I have made sure his loan and funeral expenses have been paid for and any government cheques have been paid back. As of now he has 2000.00 in the estate account and I have a death benefit cheque to deposit. It's 2500.00. I know taxes will need to be paid next year. Can you confirm when I take the tax bill to the bank it can be paid from his estate. Also because the will has not been probated and I am not willing to go through the paper work and trouble to do so what are my options for closing this account next year. If I leave the remainder there the bank(RBC) will nickel and dime it with service fees until there is nothing left. I was told in the beginning the less money in the account the easier it will be to close out I have a felling this isn't so. I was hoping to close it out so there will be final closure to his estate ( there is not much to it ). I'm also more then willing to walk away from the account if I can't close it.

    ReplyDelete
    Replies
    1. If the assets you have mentioned in your note are the only assets in the estate, you do not have to probate the will. Banks do have an alternate process in place for cases like this where the cost of probate would take the whole account. The process would require you to sign an indemnity form. That costs nothing. Your bank manager will be familiar with the process.

      If you do that, you can take control of the account, so you will be able to pay the taxes from it. You can close it if you want to.

      You haven't said who the beneficiaries of the estate are. You must pay all debts (and it sounds as if you have done so) and taxes, then whatever is left must be divided among the beneficiaries.

      Lynne

      Delete
  47. I am the sole executor and beneficiary of my deceased husband. He was a financial broker and received commissions from the insurance company, These commissions are to continue to me but the insurance co. can only make them payable to my husband's name>(because they are only payable to a broker). I am in the process of opening an estate account for these commissions to go into and need to know if the funds will be accessible to me for paying bills & mortgage etc. Will probate be necessary for this?

    ReplyDelete
  48. I am the executor of my step fathers estate. Probate was approved in August and our attorney asked the bank to surrender all funds to their office in my name. We have had nothing but problems with this bank and I was advised by our attorneys to open an account with my own bank who I was familiar with. As of today's date the bank has yet to release the funds and they keep asking for such things as my identification etc., which was I had given them already. I guess my question is do they have the right to not release the money once probate has been granted? Does the executor have the right to take the funds to any bank? I fear they are aware we will be transferring all the money to another bank and that is the hold up.

    ReplyDelete
    Replies
    1. You're right, that is the hold-up. No bank wants funds to flow out. That's why they're dragging their feet. However, an executor does have the right to use whatever bank he or she chooses, and it makes sense to go where you feel comfortable and have received good service.

      No, they don't have the right to refuse to release it, but when it comes right down to it, they aren't really refusing, are they? At least, that's their point of view. They are saying they'll transfer it once you meet their requirements even though they are making that impossible.

      Consider making an appointment with the branch manager. Tell him in advance that you are coming in to collect a cheque for the full amount of funds and you expect it to be ready. Make sure you have provided everything they asked for. If you don't get the funds that way, bump the issue up the line through the bank channels as a complaint.

      Lynne

      Delete
  49. What if the deceased's will names you as the "Estate Trustee"?

    I'm starting to work on settling my mother's estate and one of her financial institutions is asking for a CAET "Certificate of Appointment as Estate Trustee". I was under the impression from my mother's lawyer who handed me notarial copies of her will that that document gave me the legal right to proceed and get any bank accounts changed from her name individually to "The Estate of.." There is real estate and rental properties involved, with rent payments coming in and on-going expenses to be paid on a monthly basis.

    ReplyDelete
    Replies
    1. What is your question? Are you asking why you have to get probate (aka Certificate of Appointment)?

      Lynne

      Delete
  50. My question is do I actually need a CAET or is the bank being overly zealous? This is an on-going business with on-going income and bills that need to be paid. There are debts owed (including this financial institution which is a tenant in one of the properties). Getting the will to Probate is going to take a bit of time.

    ReplyDelete
  51. A person made a will which was never signed. Two witnesses, however, signed the will as witnesses and swear that the maker of the will (now deceased) made the will, and somehow no one noticed that the maker did not sign it. Do I have to apply to Alberta Surrogate Court to have the will proven as valid before applying for probate?

    ReplyDelete
    Replies
    1. Part of the probate process IS verifying the will, so you can do this all in one step. The judge has discretion to deal with the will. You'll have to make sure the whole story is told to the court in your application for probate. If all is well, the probate order will verify the will is valid. If the judge is not fully satisfied with it, you may be directed to prove the will more formally.

      Lynne

      Delete
  52. Lynne,

    I hope you can help. I have having some real tough issues with TD Bank. I have opened an Estate Account for my father, but the bank will *NOT* give me an updatable bank book or online access to the account. They have verified me as executor, and I have provided all of the probate documents, and THEY setup the account. However, to get the balance or the transactions, I have to call in and get whatever information I can. The manager has told me that if she isn't available one of the other manager can help.

    Well, today is that day. The manager isn't available, and both of the assistant managers are unavailable. I need to know the balance, and I can't get it. And, there is no online documentation about Estate Accounts that I can find anywhere on the TD website.

    Is this normal? The bank has an account for which there is no online access? How can I keep track of what cheques have cleared? Is it really the case that I can't get this information if the PEOPLE aren't available? Is this really 2017?

    Anything you can do to help would be greatly appreciated!

    Thanks.
    Fred

    ReplyDelete
    Replies
    1. Personally, I don't see the difference in an online account for an estate and an online account for an individual, once you have established your credentials as the executor. This is certainly not the law, but must be an internal policy of the bank. What purpose it serves would only be a guess on my part. Once you are proven to be the executor, the bank has no control over what you do with the money because they bear no liability. If you waste or steal the estate, that's not on them; it's on you. If anyone goes to jail or pays a fine or whatever else the fallout might be, again, that's you, not the bank. So what I'm saying is that they have no reason to try to supervise what you're doing once you have provided the proof that you're the executor.

      Lynne

      Delete
  53. I opened an Estate account with TD as well. They told me I would be able to get a bank card and on-line access and cheques once I had provided them with a CAET. Until then I have to ask for a balance and any bills I need to pay out of the account will have to be by bank draft.

    ReplyDelete
  54. That's interesting. It must be a policy that TD has established. I wasn't aware that they were doing that. I might have to put in a call to a financial advisor I know over there to see what I can find out about this.

    Lynne

    ReplyDelete
  55. I was joint POA with my brother, but my mother only added my name to her bank assets, explaining to them that she wanted me to have Right of Survivorship on all assets. (In case my brother contested the Will, I would still get the money). She asked each bank was this a problem, each said it was not a problem. This meant the assets did not go through the Will, nor to my brother, yet all three banks released, the funds to my brother (2 banks, within hours of the day he and his daughter changed the POA to remove me, and just make it the two of them) it was almost a year, before my mother found out the POA had been changed, as she never asked for it to be changed. The TD bank allowed my brother to even close accounts, and cash in GICs and made all assets payable to him. All he did was tell the banks that she had terminal cancer,(one bank employee stated she was told, he was consolidating my mother's assets, she called their lawyer, who told them it was okay to give him the money) and they released the money, prior to her death. All the TD bank did was phone the hospital, and that was good enough for them. I was told by my mother's doctor, at the time, that she may have as little as 4 weeks to live (but she lived just over 3 years, so it was a hardship, as it was over $100,000 in total) but in less than 2 weeks the money was gone, before the doctor even talked to me. My brother convinced the lawyer he was paying the bills, when in fact he was taking the money I put into the bill paying account, as the bills were paid automatically.

    There was no need to set up an estate bank account, as all three banks released the assets prior to my mother's death. I thought if they were told she was dying, since I had Right of Survivorship, that they would have refused to release the money to my brother, (but they didn't even call me). Apparently, they were under no such obligation, in fact the manager of one bank stated, that since my brother was POA, he could do what ever he wanted with my mother's money, and the first thing he did was put a couple thousand towards a loan payment (don't know to which bank - but it does mean they benefited). One lawyer told my mother, that she had a case against the three banks, but of course she was dying and had no money except for her pension, which he took, convincing her he had made a deal for my brother to return the money, and pay thousands in legal fees, to the lawyer. My mother died a few months later, after which my brother claimed he had no money. He was suppose to prove to the courts he had no money, but failed to do so, and a lawyer stated he would inform the courts of this, but I needed to pay him $2,000 first. Since I only have about $500 a month to live on after the bills are paid, I can't afford it. (The cops have had the 'case' for 6 years)So be warned some banks are willing to release funds prior to the (joint) account holders death,(whether it be weeks, or years) and that the money while insured, is not insured for theft or fraud, so you won't be getting any money back from the bank if they 'made a mistake' even though according to one manager 'it happens all the time'. My mother learned the hard way that her money was not as 'safe' in the banks as she thought.

    ReplyDelete
    Replies
    1. That really is an awful story. The things people will do to their own parents is absolutely appalling.

      Your mother's money wasn't safe because your brother is a crook. Had she appointed someone honest, this wouldn't have happened, but I'm sure she had no reason not to trust him. I hope other parents read your story because it shows just how careful you have to be when appointing your own kids. The majority of elder financial abuse is done by the elder's kids.

      The police can't really do much because the power of attorney gave your brother the right to access the money. Whether or not he exceeded his authority is a matter for a judge in a civil court to decide so it muddies the water. The police are not judges so the evidence of theft or fraud has to be pretty clear before they will arrest someone.

      You are right that it costs money to enforce your rights. It's a downfall in our system, but that is the system we have.

      Let's hope your brother is standing right in the middle of the road when the karma bus comes barreling along.

      Lynne

      Delete
  56. how to work with four executors?

    ReplyDelete
  57. Hi Lynne,

    I have a question. My sister and I are both trustees for my mothers estate account. We two are the only benficaiaries. Everything has been done for the estate. Now, at the 11th hour, she wants to be compensated for administering the estate, which we both did, but she feels she is entitled to more than me and I disagree. Now she will not agree to allow me to withdraw the 50% of funds from the estate account that I am entitled to. What can I do? I only want 50%. Thanks.

    ReplyDelete
    Replies
    1. There are only two options. One is that the two of you work it out between you. The other is that a judge figures it out for you, which of course means legal fees to be paid.

      Lynne

      Delete
  58. All Canadian banks apparently have their own rules regarding estate accounts and probate. Having been executrix of my husbands assets 30+ years ago, I should have known better; he had accounts at both CIBC and a smaller one at RBC. CIBC had no problem setting up an estate account on provision of the will; RBC would not do that without probate. My mother died in Feb 2017 and her account was at RBC. That institution is causing me a lot of distress by not allowing me to deposit items or pay small liabilities on her account. Probate is slow because her state pension came from UK along with a small occupational pension. Mum's UK state pension was overpaid by 1 week, having finally received notice of the amount, I now have to reimburse that myself because RBC refuses. She has money due to her from the other UK source, but when I asked for the overseas sort code for her account I was told the deposit wouldn't be accepted because the account is not yet an estate account.Mylawyer tells me TD is even worse to deal with re estates, bottom line is check with a bank about their estate account policies before you have a bureaucratic nightmare on your hands.

    ReplyDelete
    Replies
    1. In my experience, none of the banks are very good at handling estates. They don't give the retail branch staff any training and their policies are poorly understood and inconsistently administered. I've heard and seen horror stories from every bank and credit union.

      Note that I'm not talking about the trust company part of the banks. Those people actually DO know their way around estates really well. Unfortunately though, they are not the ones involved in your basic executor's account, because the executor's accounts are handled at the branch level.

      All I can say to executors is that if you cannot get what you need at one bank, go to another one - the competition - and see if you get a better response.

      Lynne

      Delete
  59. I live in the USA, my son lived in Canada and passed this year. I need to set up an estate account for him. Since I am sole beneficiary and will receive the cheques to his estate, how do I set up the estate bank account.

    ReplyDelete
  60. Hello Lynne.
    I am the executor of my fathers estate.
    I have set up an estate account.
    The probate is complete.
    I have done the taxes.
    I have just finished filing the Estate Administration Return.

    I need to pay a lump sum payment to a few beneficiaries. I am the beneficiary to the residual. There is enough money in the account to pay the lump sum payments and still cover any surprises that may come up before final tax clearance is issued.

    My question is:
    What is the best method of paying and having proof that the payment was given to beneficiary? Geography means I cannot do it in person.
    Do I just issue cheques from the estate account and the cancelled cheque is proof?
    Do I get bank drafts and a contract made up?

    One beneficiary is a minor. I am paying their benefits to the court.

    Thank you for any help and advice.

    ReplyDelete
  61. Hi Lynne, great blog.
    My husband recently went to the TD in Guelph Ontario to open an estate account for his mom. TD gave him such a hard time. He had all the necessary documents but I guess in their mind the estate was not worth their time. One employee actually told the two executors to deposit into the account my mother in law held joint with the one vs opening a new one. Her will states two executors joint. In the next breath the employee told the other executor, the old account is now yours and you can take the Money and run. The branch manager was also called into the room. When my husband left , he said they did not care, they were not there to help, they would not listen and talked over him.
    Needless to say, no estate account was opened.
    I advised my husband to find another bank, because after I talked to the TD Manager, wanting to understand what they told him, the branch manager talked over me too.(I was not asking any info on the account only about their requirements for an Estate Account) but she jumped on him immediately and would not listen. I am a retired Branch Manager from another financial institution, so her attitude did not sit well with me and basically this manger argued with me on the phone. She had no idea if I was a TD customer or not.

    ReplyDelete
  62. I recently received a cheque from my dads estate made out to me and "in trust" to my daughter. Do I need to set up a trust account to deposit this for her?

    ReplyDelete
  63. I am the sole beneficiary of my wifes will and the executor. She had one (nonjoint) bank account, a TFSA which had some money in it. The bank has closed the account and sent the cheque to the estate. Do I need to open up an estate account to transfer the money to myself. It seems somewhat ridiculous.

    ReplyDelete
  64. My mom passed in June, after living in long term care for just over a year. I am both executor of her "estate", as well as POA and sole beneficiary. The ONLY cheque to come in was a refund from the cable company (5 months after I cancelled her account, PRIOR to her passing), and it is made payable to her estate, with my name and address underneath. TD won't cash the cheque, saying it needs to go into an estate account. I have yet to close her personal bank account - this is a minimal cheque ($200) and it seems RIDICULOUS to have to go through all of this. Can I simply deposit the cheque to her bank account and withdraw it?

    ReplyDelete
    Replies
    1. Perhaps you think it's ridiculous, but banks and most other people think it's a good idea not to let a deceased person's family treat the bank account as his or her own. I know you want it to just be easy but there are procedures built into our system to protect people.

      The cheque is not payable to your mom, but to her estate. Not the same thing. Unfortunately there is no law I can draw on to give you permission to by-pass the legal requirements of estate administration.

      Lynne

      Delete
  65. Hi Lynne. Excellent blog ... and thank you for writing the Self-Counsel press document "How Executors Avoid Personal Liability..." in BC, published in 2014. It has been a great help to our family.

    My question relates to your initial post at the top. Clip: "...If you're an executor, however, you can open the [estate] account at any time once you take charge of the estate."

    Is that the case in every province or are their provincial differences? (I'm in BC). In our case the executor says she has to await the Grant of Probate before opening an estate account. It's now over a year since our relative's DOD and delays are almost all due to the executor's actions or lack thereof. Thank you.

    ReplyDelete
    Replies
    1. Executors don't have to wait for the grant of probate. I don;t know what is happening in this particular estate that might make the executor think that. She might have received wrong advice from a lawyer or from a banker.

      Her authority to deal with estate assets comes from the will itself, not the probate. Therefore she can open the account, receive funds on behalf of the estate, pay bills etc all before she gets the probate.

      Lynne

      Delete
  66. Hoping you can answer my question. My mother passed, without a will. She has no real assets. She was living with me and we have a joint bank account. I have survivorship of this account. When I do here final tax return for this year, I believe she is only entitled to Ontario tax credits and GST. Can it be deposited into this account. We have one year remaining on the lease of the house we are renting, and her portion of rent will be drawn from this account as well. Any advise? I am the person who paid for the funeral and I already applied for the CPP death benefit. Thanks!

    ReplyDelete

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