Common Questions About Estates

Who is a residual beneficiary?

A residual beneficiary is any person who is given a share of the residue of the estate.

The residue of the estate is the estate property that remains after payment of debts, and distribution of the specific gifts named in the will.

The residual beneficiaries are often the parties with the role of monitoring the executor to ensure that they do their job properly, and do not waste estate assets.

Can I see the will while the testator is still alive?

You have no legal right to see the will while the testator is alive. That said, some testators may voluntarily tell you about the will, during their life. Such communication is often a good idea, to ensure no one becomes confused or suspicious after death, when it is too late to ask questions.

But if a testator refuses to show you the will, you likely have no legal power to force them to show you the will during their life. One exception may be if you are acting as a power of attorney for a testator.

Do I have a right to be informed, during the life of the testator, if the testator makes a new will which cuts me out of their estate?

No. Any person who makes a will is entitled to confidentiality on their property and legal documents, during their lifetime. Obviously, after death, the reality will come out as a matter of necessity, as beneficiaries will have to be told whether they will receive a gift or not.

Is a handwritten will legally binding?

It can be. This type of will is called a holographic will. It means a will which is dated and signed by the deceased, and is entirely in their handwriting. It does not require witnesses.

However, you may wish to consult a lawyer to ensure a specific holographic will is valid. Wills made by non-lawyers may often accidentally breach certain rules of good drafting. For example, such wills may forget to appoint an executor, or may use confusing wording, or may omit certain key terms.

Often a testator who wishes to initially save $300 to $400 in legal fees, by making their own will. However, they can sometimes end up accidentally creating an issue, which will cost many times this in future legal fees, to remedy in court. As such, extreme care and planning should be used with home-made wills.

Also note that  if a will is made without an independent lawyer, there may be less independent evidence to help  rebut concerns of incapacity or undue influence.

Does the executor have to show me my parent’s Will?

A will is a private document which belongs to the deceased person. So, there is no automatic right to see the will just because you are a family member.

If you are a residual beneficiary of the will, you have a right to see the will. If you are not a residuary beneficiary, the executor is within his rights to refuse to show you the will. That said, many executors will simply show you the will, to put any questions to rest.

Can a beneficiary of the will witness a will?

It is not a good idea to have a beneficiary of the will witness a will.

The Saskatchewan Wills Act provides that a beneficiary of the will should not witness that same will. However, such situations do still arise, when home made wills are made by non-lawyers.

Such an issue can be fixed by a court application. However, as this court application will consume legal fees from the estate, it is better to avoid the issue from the outset.

What if I do not think the will treats people fairly?

There is no law in Saskatchewan requiring that a will be “fair.” It is legal to give highly unequal gifts to different family members.

The main exceptions are where there are dependent beneficiaries involved. It may be unlawful to give them an insufficient gift.

If you give unequal gifts, make sure you make clear  to the drafting lawyer, why you are doing this. This will help rebut any later allegations by unhappy beneficiaries.

Do I have standing to challenge a will?

Not everyone can challenge a will.

To have standing, you must be able to show that you stand to inherit something if your will challenge is successful.

Examples of people who have a vested interest in a will, include:

  1. Persons who were named under a prior will, but then were disinherited under the current latest will;
  2. Persons who would inherit under a situation in which no will exists (i.e. an intestacy).

Who has the legal right to make decisions about burial?

It is up to the executor to oversee funeral decisions. If there is no executor, the decision typically goes to the spouse, or, if no spouse, the eldest adult child. Funeral arrangements should be reasonable – for example, there should not be a $13,000 funeral out of an estate worth only $30,000.

Is joint property included in an estate?

Generally speaking, any property that is jointly owned is not included in the estate.

However, an exception can arise where it is proven that the property was not truly jointly owned, but had been put in joint names as a matter of convenience (i.e. without truly intended to convey full ownership). These determinations are very fact specific, and you should consult a lawyer.

When placing property into joint names, it is helpful if the first owner signs a declaration which makes clear what their true intentions are. That is, are they intending to fully convey ownership rights, or, are they expecting the second person to merely hold the property in trust. Many lawsuits are caused when there is a later dispute over what was intended, when a child was put as joint owner on property by a parent.

Can the executor make me wait for my inheritance until they have paid all of the bills?

Typically, all debts of the deceased must be paid before any beneficiary receives anything. That said, many executors will not wait until the final tax bill is paid. Rather, they may keep a holdback for such taxes, and use some of the remainder to do an interim distribution.

Can I turn down my inheritance?

Yes, you would provide a written and signed waiver form to the executor.

Can I have my inheritance go to someone else?

You should discuss this with the executor. Typically, you may be asked to sign an Assignment or Direction to Pay. Thus, you are not renouncing your inheritance, but merely communicating that you wish it to go to someone else.

Can I inherit if I am bankrupt?

If you are in bankruptcy, it is likely that your inheritance will be paid to your trustee in bankruptcy, for the benefit of your creditors.

Does the executor have the power to change the locks on my parent’s house?

Yes, after they take over, they are responsible for the deceased’s property. If anything goes missing from the home, the executor can be held responsible. That said, executors should communicate upfront with beneficiaries, to avoid misunderstandings or concerns.

How much can an executor charge?

To answer this, the first place to look is the will. If it sets out a specific compensation regime, that will likely govern.

If the will is silent, then the common law principles will govern the amount of compensation. Typically, an executor will get anywhere from 1% to 5% of the estate as compensation. Each situation is different, and the reality depends on the amount of work done, the success achieved, the complexity of the estate etc.

If the beneficiaries cannot agree with the executor on the fee to be charged, then a court application to fix compensation may be required.

What if the executor will not communicate with me?

Executors should be communicative with beneficiaries, and keep them up to date. That said, executors do not have to clear every single decision with beneficiaries in advance.

However, if you believe if an executor is not communicating properly with you, you may wish to hire a lawyer to send a demand for information. If the executor still will not communicate, the intervention of the court may be required.

Depending on the situation, some of the court powers include:

  1. Removal of executor (this is very rare);
  2. Orders for the executor to produce an accounting
  3. Imposing deadlines for things to be done
  4. Ordering that a partial distribution of the estate be done
  5. Requiring that the executor pay for certain estate losses out of their own pocket.

What is an executor’s accounting?

When the executor is finishing the estate administration, they will provide an accounting to the beneficiaries.

Beneficiaries often have concerns with accountings. Sometimes the entries are vague or incomplete. Usually, reasonable questions and answers can help resolve specific concerns.

Under Saskatchewan law, an executor should provide an accounting within 2 years of probate. In reality, if no beneficiaries insist on this timeframe, this deadline is often missed. At latest, the executor will provide the accounting at the end of the estate administration, when the executor asks the beneficiaries to sign releases in favor of the executor.

The purpose of the accounting is to show the beneficiary what the executor has done with the estate assets, i.e. what has come into, and out of, the estate. It will also show the amount spent on legal or accounting fees.

What if I dispute certain entries in the accounting?

Some major concerns may include transactions which are missing, under-valuation of major assets, or excessive expenses or fees. You would write to the executor and raise your specific concern. If the executor will not offer a reasonable solution, you can force the executor to pass their accounts in the Court.

That said, passing the accounts will consume legal fees out of the estate. Make sure that your concern is valid, and significant enough to justify a passing of accounts. In the passing of accounts, the Court will review the accounting, and eventually rule on whether certain actions by the executor were legitimate, or, if the executor has perhaps caused a financial loss to the estate.

The majority of estates never go to a passing of accounts. Rather, the beneficiaries voluntarily consent to the executor’s accounts.

Will I be asked to sign a release?

Eventually, the executors will ask the beneficiaries of the estate to sign a release. This will state that the beneficiary approves of what the executor has done, approves of the executor’s compensation, and that the beneficiary has received their proper share of the estate.

Once you sign this release, you give up your right to dispute the executor’s actions.

Along with any release, the executor should provide you enough information to make an informed decision about their conduct of the estate.

If I am a family member, do I have an automatic right to get a certain piece of personal property as a keepsake?

No. Your only right to get a certain piece of property, is if it is specifically given to you in the will. Now, if everyone agrees, another solution may be found, even if not in the will.

But if there is no mutual agreement, then personal property is residue of the estate, and may be dealt with in the normal course (i.e. sold, and the proceeds go to the estate).

From a practical view, it is often simplest if the executor communicates in advance with beneficiaries about certain items. If beneficiaries wish to buy certain items, they can be given the chance to do so, for fair market value. If more than one beneficiary wants to buy a certain personal item, then the executor can sell it for the highest bid between the two persons, or, the parties may even agree on another method (i.e. flipping a coin). The important thing is that everyone agree, and if no agreement, the default principle is that items should be sold for fair market value (to benefit the estate).

My parent told me verbally that they wanted me to get a certain item. Is that binding?

No. Oral instructions will not supersede the terms of the Will.

What if an elderly testator made a new will right before they died?

This by itself is not against the law. However, some circumstances can raise some concerns.

Some relevant questions to ask include:

  1. How elderly was the testator?
  2. Were they in poor or failing mental health when they made the will?
  3. Was there an explanation for why they chose to make a new will at that time?
  4. Did it appear that the new will was entirely voluntary, or, was some beneficiary highly involved in making the will?

It may be entirely legitimate that a testator made a new will, and so you should not jump to conclusions. But, if after investigation you still have serious unanswered questions, you may have grounds to challenge the will.

Be aware that the process to challenge the will is long, expensive and can be emotional. Consulting a lawyer can help you determine if you have a potential case.

What does it mean to contest a will?

It means that you believe that a given document is not a valid will. Typically, this is because you allege the document was made while the testator either lacked capacity or, was unduly pressured. In some cases, you may allege a given document is invalid because it lacks certain formalities – i.e. witnesses, signature etc.

How do I contest the will?

Typically, you will hire a lawyer to help investigate your concerns. Explain in detail what your concerns are, and why you believe the will is invalid.

The lawyer will typically write to the executor and try to get information (i.e. medical records, the notes from the lawyer who drew the will etc.) This evidence will sometimes defuse a challenge from the outset, saving much in future effort and legal fees. Other times, it will provide evidence which helps you mount a challenge.

The above is not legal advice. Specific situations require specific advice by a lawyer. For further reading on common questions, see Lynne Butler’s The Beneficiary’s Answer Book, 2013.