Posted: April 8, 2020

Many assume that if they make a Will all their worries are over. While that may be true for some, if your Will wasn’t properly prepared, your family may face expensive and lengthy litigation. Upon your death, your executor has a long list of things they must do to start safeguarding your estate. These include informing family and friends, locating the Will, preparing the funeral, contacting your banks and utility providers, and dealing with his or her own grief. All these duties are compounded if the Will is unclear or one was never made.

At Estate Connection Law Office, we provide guidance for your family after your death. We are a concierge, one of a kind boutique wills and estates law firm. After your death, we help your Executors and Administrators not only deal with the legal aspects of your estate but also the practical aspects such as who will notify all the government agencies that you have passed, or even make sure the sidewalks have the snow removed.

Most Executors contact our office shortly after their loved one dies. We often find that a brief conversation with the Executor can reduce their anxiety and provide them with a framework of what to expect in the coming weeks. While many family members may place pressure on the Executor to know what property is in the Estate, we recommend that the Executor take this time to plan the funeral, grieve with family and meet with us after any service to discuss if an application for Probate or Administration should be commenced.

What is a Grant of Probate or a Grant of Administration? A grant of probate is the document or court order given out by the Court of Queens Bench, which means that your original will is authentic, can be relied upon and is in fact your last Will and Testament. A Grant of Administration is the court order provided when there is no will. This order outlines who can handle the Estate and notifies all family members of their possible entitlements. Land Titles, Financial Institutions, and some Government agencies require probate because they are wary, and not sure if this Will is in fact the most current one. These institutions could be liable for any losses to the Estate if they pay the money to the wrong beneficiary. Probate provides certainty that the money goes to the person who was indicated in the last will.

Family arguments can arise if your Will is unclear about the dispersal of your estate. One potential situation is the misconception regarding naming children on the deceased parent’s bank account(s). Where the intention of the parent is not clear, it is up to the child to prove that the deceased parent intended to gift the balance of the joint account to the child. If the child cannot prove that the intention was to gift the balance to the child, the Courts will find that the balance left in the joint account forms part of the deceased parent’s estate to be distributed per the parent’s Will. Where the intention is not clear, disputes over what the parent intended often results in protracted litigation between the Estate, its beneficiaries, and the child, with significant legal expenses being incurred by all.

What happens if you die without a Will?. When a person dies without a will it is called “Intestate”. You Estate will likely need to obtain a Grant of Administration. The best first step is for your family to contact a lawyer well versed in estate law. They can help them start the application for a Grant of Administration.  The Surrogate Rules of Court set out a detailed outline on who can be the administrator of the estate. Typically, the spouse is the first choice, then the children, then the parents of the deceased and so on.

Whether your estate is probated or a grant of administration is applied for, the process takes approximately five months from the submission date; if there’s an error on the application, a recent procedure change states it cannot be returned to its original place in the cue—it’s put to the bottom of the list, doubling processing time.

Some ways to help your executor after your death is to include lists with your estate planning documents: list all your property, as well as who legally owns it, who receives it and where it’s located; list your utility providers so your executor can continue to pay them, especially if your spouse or other family members still live in your home; list all your passwords and pin numbers cancel any online accounts. It’s prudent to update these lists annually, as well as give copies to your lawyer. Update your beneficiaries annually so you can account for long-lost relatives, and name your beneficiaries instead of stating “…and to my son, I leave…” Ambiguity may lead to arguments and litigations. Pre-plan your funeral. Many funeral homes offer packages where you can choose your casket/urn, type of service, even travel insurance in case you were on vacation when you died so your remains can be returned home. Some even allow clients to pay monthly so your family won’t have to pay for your funeral at an already difficult time.

Properly drawing up a Will is only the first step in making sure your family is provided for after your death. Giving your executor and your family the necessary documents and instructions greatly lessens the stress in the difficult months to come.