Dad, it's time.....time to write a Will

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For 15 years, my Dad has been building and rebuilding his home. Awake every day at 4 am, he sits in his garage, listens to the radio, drinks his coffee, and sets the day’s agenda.  By 6 am, my Dad is busy hammering, sawing, painting, or drilling something.  See, my Dad is continuously improving his home, never satisfied with its appearance.  It is more than a hobby for him – it’s a work of art.

As a result, he frequently, ever so subtly, lets me know that he hopes that his efforts don’t go to waste.  He says, “Hey, just off of the top of my head, I think you should make this your home when I’m gone.”  After hearing this for the umpteenth time, I started to consider it.  I soon realized though that his intentions may be subject to a number of legal restrictions as he does not have a will.    

There are many complications that may arise when a person dies intestate (without a will).  First and foremost, an individual must apply to the court to be appointed the estate trustee (formally known as an administrator).  Upon appointment, the court will give that person a “Certificate of Appointment of Estate Trustee Without a Will”.  As there is no will to direct the administration of the estate, the deceased’s property will be distributed to those beneficially entitled as defined by Part II of the Succession Law Reform Act.  Typical beneficiaries include, but are not limited to, spouses, children, grandchildren, parents, and/or siblings.  Therefore, following the court’s appointment, an estate trustee must define the list of entitled beneficiaries and distribute the estate accordingly. 

With regards to real property, the estate trustee can exercise any of the statutory powers provided to it under the Estates Administration Act.  These powers include the ability to sell real property to satisfy a deceased’s debts, sell real property for the purpose of distributing the proceeds amongst the beneficiaries, or to convey the real property to the beneficiaries. 

When a deceased has significant debts, and the estate trustee requires the equity in real property to satisfy those debts, he/she has the right to sell within three years of the deceased’s death without the concurrence of the entitled beneficiaries.  For example, if my Dad had significant debts, the estate trustee could sell his property to satisfy them despite my objections and my Dad’s wish to pass the house to me.

The estate trustee may also sell the property within three years of the death of the deceased, but only if the majority of the beneficiaries concur and the proceeds are distributed to the persons beneficially entitled.  For example, if I were one of five siblings, and upon my Dad’s passing, they voted to sell his home despite my objections and my Dad’s intention, the estate trustee could sell the house and distribute the proceeds in equal shares.   

Finally, an estate trustee may convey the property directly to those beneficially entitled within three years following the deceased’s death, with or without a court order.  When the conveyance is made without a court order, the concurrence of all persons beneficially entitled is required.  In the event that one of the beneficiaries opposes a conveyance, the estate trustee may apply to the court for an order.  For example, if I and my five siblings could not agree on how my Dad’s home should be conveyed and to whom, the estate trustee could make an application to the court to decide the matter. 

Following my investigation, I realized that by not having a will, my Dad was leaving a lot to be determined by others.   I called him and told him that it was time to get a will as it is the best way to ensure that his intentions would likely be followed, and thus, it was an investment as necessary as his new roof.

Topics:  Beneficiaries, Debt, Estate Planning, Intestate Succession, Trustees

Published In: Residential Real Estate Updates, Wills, Trusts, & Estate Planning Updates

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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