The
Toronto Star
How
To Keep The Peace In Inheritance Row
James Daw
Families
sometimes find themselves at war after an elder dies, and
the executor of the person's will may get caught in the middle.
Just becoming the chosen one to deal with a relative's estate
could reignite smouldering jealousy and suspicion.
Worse still,
your new position of honour could get you hauled into court,
humiliated, isolated or saddled with paying the will-writer's
tax bill. But tips in a new book by three Ontario wills and
estate lawyers could help spare some lasting grief.
Jordan
Atin of Hull & Hull LLP and Barry Fish and Les Kotzer
of Fish & Associates lay out several strategies in The
Family War, Winning the Inheritance Battle, including how
to successfully exclude the black sheep, overturn a deathbed
bequest to the family bully and get your share of the estate
without being cast as a gold digger.
But, true
to the spirit of an earlier Fish/Kotzer collaboration called
The Family Fight, their latest book urges conciliation over
confrontation, peace over power plays. Their caring advice
could save a lot of executors from undue hassles, and families
from destruction.
"Rarely
can the winner of a family war declare that his or her victory
was absolute," warn the authors. "You must look
long and hard to find someone who takes a brother or sister
all the way through the court system, completely conquers
them and simply doesn't care about the emotional fallout that
such a victory leaves in its wake."
"A
family estate battle is likely to haunt you for the rest of
your life, and your family for generations to come,"
the authors write. "One client told us (it was more important
to be able to) still talk to his brother, his niece and nephew
at a family wedding."
The 221-page
book is written in simple language and includes a sampling
of real life stories where greed overtook common sense, such
as one about the family that fought in court over a pair of
deer antlers.
Even where
there are no valuable assets to inherit, family fights can
erupt, the authors warn: "Battles among children are
very often over memories rather than money."
Their advice
for amateur executors is extensive, but includes the following
suggestions:
#
Check the date on the will. If it was signed before the will-writer
remarried, and did not contemplate that marriage, then, in
Ontario, the marriage will invalidate that will. The spouse
may be entitled to continued support, and where there is no
valid will, the spouse will be entitled to the first $200,000
of the estate, and a percentage of the remainder, depending
on the number of the children.
#
Every decision you make, every dollar you spend, will be open
for review and could be challenged in court by the beneficiaries.
So, you may need to consult a lawyer, a property appraiser,
an investment adviser, a bookkeeper and a tax accountant.
Just be careful what you spend, and avoid appearing to have
advisers favourable to you.
#
Keep a journal, receipts and careful financial records to
substantiate what you have done. Collect all the assets, including
outstanding loans, and protect the estate. Attempt to get
maximum value when selling any assets. Do not buy or claim
any assets for yourself, unless the will says you can and
unless you get consent from other beneficiaries or a judge.
#
Avoid needless suspicion by consulting the beneficiaries and
keeping them abreast of your progress. Live up to the terms
of the will, unless all the beneficiaries are adult and mentally
competent and can agree together to change the terms of the
will. For example, they could agree to reverse earlier gifts
or changes in ownership to enlarge the estate if they thought
it would be fairer and promote greater harmony.
#
Be prepared to deal with people left out of the will, dropped
from an earlier will or left a share of the estate that does
not reflect a special role that person may have had. The person
may have a valid claim, such as if he or she were dependent
on the deceased person, provided unpaid care or added to the
value of the will-writer's property.
#
Don't be too quick to distribute the entire estate. If you
come to the end without enough money to pay all debts, income
taxes or legal bills, you could become personally liable to
pay. Also you might not get to change your mind about accepting
compensation up to 5 per cent of the estate
after discovering how big a job you were assigned.
#
It's not even a simple matter to resign as the executor. You
may need court approval, and you may not get approval if you
have started the job without finishing it. A fight over who
will be executor could eat into the estate.
The Family
War ($28.95 from Continental Atlantic Publications Inc.) is
written for a North American audience. So references to estate
and tax law are general. While the references will generally
apply in Ontario, they may not apply precisely to every jurisdiction.
The book
is not yet in stores, but copies may be ordered online at
http://www.thefamilywar.com, or by calling 1-877-439-3999.
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