Personal Finance

Will and trustee trouble

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  • Aug 16th, 2017 5:46 am
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[OP]
Newbie
Aug 10, 2017
2 posts

Will and trustee trouble

HELLO FORUM,

Fair warning this could be a long one! Im not even sure if theres going to be anyone on here that can help me, but its worth a try.

So, My Nan sadly passed away in feburary after a long battle with various illnesses, my dad had passed away 6 years ago so that only left his astranged sister to take care and organise what had to be done.Well she doesnt deal well with stress or making decisions or basically being able to function properly in a situation like that. So my sister and I organised the whole funeral, wake and everything that came with it. Which i was more then happy to do it. Anyway, in the week leading up to the funeral my aunt and my cousin started going through and sorting out all of my nans possessions. Now i want to add here that i offered for 7 days in a row to go down and help out but she refused, id also like to add that it was quite common knowledge in our family that my nan had a draw with quite alot of money in it.

So the day after the funeral my aunt finally asked me and my siblings to come down and see if there was anything that we wanted. As we arrived we saw a massive skip bin full of stuff, while walking past we noticed that every gift we had made or brought, every photo of us she had, had all been chucked in this skip bin and broken. All that was left in the house was 3 old towels, a toasted sandwich maker and a garden knome, and thats what she offered to us. My Aunt had all ready sent all the furniture in a truck back to where she lives, she had sold the fridge, freezer, washing machine and dryer online, gifted my nans car to someone and also given away alot of other things. The day after this i got a call from my cousin telling me that my sister, brother and I had actually been named as benificiarys as my father had already passed away and my Aunt had been named as a beneficiary and the trustee/ executor of my nans will.

For the next 3 days my aunt ignored all of our phonecalls, emails and text messages for 3 days after she found out that we were in the will. So we just turned up at my nans house and my Aunt was dirty, she was so angry that we were entitled to between the three of us half of my nans livleyhood. She just didnt think that was fair or that we deserved it, she was rude, nasty, and said alot of horrible things about my mum, my dad and my grandmother.

Another vital peice of the story is that about 6 months before my nan passed away my nan gave my Aunt quite a substantial amount of money which my Aunt told us that she had only been given roughly the amount it would cost for a funeral. But not long after this we told told my my nans 2 sisters and best friend on seperate occassions that it was around $200,000. This sum of money was given to my Aunt in the event of my nan needing to go into a care vacility, anything she needed, her eventual funeral costs etc. While we were at the house my sister was sneaky enough to see poking out of her bag a letter with a law firms name on it and took note of it just incase. After another week had passed and we hadnt heard anything from my aunt or any of them.

So considering we had no answers, we didnt know what was going on, and we hadnt been contacted by a lawyer i called the law firm and after my identity had been proven and after me calling the firm for 4 days in a row and each time there was a different excuse and he would call me back, which he didnt. He ended up taking my call on the 5th day and then he informed me that he couldnt talk to me or give me any information because as my Aunt was the trustee of my nans estate that made him her solicitor and that would have been a conflict of interest. Now i had some basic knowledge about how things were ment to happen and i just couldnt understand why he couldnt give us information that we were entitled to, because I was and still am under the impression that. That is actually exactly what he is meant to do. So after i was told all of that we ended up getting our own legal advice which we were told that all the benificiarys should have already sat down and been read the assests that were ment to be divided etc. After explaining about her taking most things or giving away etc we were then told to write down everything that she had taken for for herself, what she had given away or sold and how much it was all worth and include the money that my nan gave her for her care because seen as my nan never got around to use it thenit would go back in as part of h er assests. So legally she now owed us the munortary value of half of my nans possesions.

Well that letter wasnt received well. I got so many abusive messages and it ended in her not wanting anything to do with us ever again, which was no real loss to any of us seen as id only ever seen her about 4 or 5 times in 26 years. So about another 2 weeks pass and we still hadnt gotten any information, so I rung the law firm again, 2 days later i got a call back from them telling me that my Aunt had cancelled her situation with them and was going to find someone else to handle it this was around mid to late March, and I have not heard anything from the new solicitor or her.

I was under the impression that the trustee is in charge of making things fair, equal and legally bound to be honest?can she actually get in trouble with the law for doing all these things?

I think she was the reasoning behind the first solicitor not doing what he was ment to, or maby i have it wrong and theres not meant to be a meeting and we are not ment to be told about what assets my nan had?? I also believe that she only left that firm because she wouldnt have disclosed to him about the money she was given by my nan or the fact that she was giving away our inheritance and that was all going to have to be reimbursed to us by her.
I doubt she has even told her new solicitor that we exsist because it has been 5 months since she has been with them. If she were to tell him that my dad never had children is the Solicitors legally bound to atleast try and find out? Also her constantly refusing our offers to help to go through my nans stuff is obviously because she knew about the draw with cash in it and they could then send the removals truck packed with what she wanted to keep before we would ever see it. Even the fact that she lied to us about how much money my nan gave her she obviously never expected for usbto be told about that.

I just think that she is trying to get it all for herself and cut us out of the equation. I have tried doing a few online will enquiries to see if its in progress or something, but I just cant find anything helpful. I really dont know where to go from here, so any help, clarifications or advice would mean alot. So hopefully you guys have some good advice for me.
THANKS IN ADVANCE FOR YOUR HELP!
13 replies
Newbie
Dec 15, 2015
80 posts
31 upvotes
RH, ON
Get a lawyer ASAP!

So basically she messed up big time. Huge. If she was the trustee, she was supposed to document all the assets, pay off any remaining debts and the whole thing basically goes through probate court(depends on how the will is setup). There will be taxes that need to be paid ext. If she sold things, they were technically not hers and I'd consult the lawyer to how to resolve this. I'd likely ask for the cash value or for them to be replaced.

You will want a complete accounting of everything owed, sold ext. (when my old man past away, i went through thousands of pages of accounting)

seriously though, hire an estate lawyer.
[OP]
Newbie
Aug 10, 2017
2 posts
Yeah for sure she has. And yeah im starting to think thats guna be my only option. Ill just have to try get one one pro bono. Thanks for your help!
Newbie
Dec 15, 2015
80 posts
31 upvotes
RH, ON
Katiegibson wrote:
Aug 11th, 2017 9:28 pm
Yeah for sure she has. And yeah im starting to think thats guna be my only option. Ill just have to try get one one pro bono. Thanks for your help!
If you are the beneficiary and there is a large sum of money. Any decent lawyer will wait until you get your money to collect. They know its coming. That's how my lawyer worked at least.
Sr. Member
Oct 6, 2015
518 posts
256 upvotes
Yeah providing your "case" isn't entirely abusive or vexatious, the courts almost always award costs from the Estate, even if unsuccessful. Executors are held to a very high standard. Unfortunately lots of them really don't understand what their job is, that is, to execute the mandate of the deceased (and/or whatever statutory mandates are in place), and they are often in conflicts of interest as beneficiaries themselves.

I will just point out, however, that the Executor is entitled to reasonable expenses associated with liquidating the Estate, plus an additional fee set by law. So you should not expect to receive perfectly a certain percentage of the Estate's assets.
Member
May 28, 2007
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Katiegibson wrote:
Aug 11th, 2017 6:23 pm

I just think that she is trying to get it all for herself and cut us out of the equation. I have tried doing a few online will enquiries to see if its in progress or something, but I just cant find anything helpful. I really dont know where to go from here, so any help, clarifications or advice would mean alot. So hopefully you guys have some good advice for me.
THANKS IN ADVANCE FOR YOUR HELP!
That's exactly what it sounds like. A greedy aunt. Get a lawyer and let them sort it out. Although a lawyer will cost money, so you'll have to determine if what you'll get minus lawyer's fees is worth it.
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Sep 8, 2007
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A sad situation dealing with loss and then having to deal with this.

But let me make it clear, you can't deal with your aunt with kid gloves in anyway whatsoever after what has transpired. You need a shark of a lawyer that will get what is rightfully yours. There will be a need for some forensics to track and hopefully uncover the money and any proceeds of sale she made wth what was estate property and not hers to just sell and keep the cash.

I think of us have seen this on the passing of a loved one..lots all hugs and tears at the funeral and then someone just wants to make off like a bandit. They feed off the idea that you won't fight back since you want to keep things civil. But their actions make it impossible to do so.
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Jan 11, 2004
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Other than property title searches and things how is it even possible to establish what the assets are if the executor controls all accounts? For example let's say someone has some investments in an account worth a million or something and only the executor really knows about it. How would beneficiaries find out about this money? I mean sure a court could order an accounting of the assets I guess right but if an executor is dirty how could a beneficiary ever find out?
Member
Jan 15, 2015
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Katiegibson wrote:
Aug 11th, 2017 6:23 pm
So, My Nan sadly passed away in feburary after a long battle with various illnesses, my dad had passed away 6 years ago so that only left his astranged sister to take care and organise what had to be done.
First, I am sorry to hear of your loss. Your terminology is not clear. I assume "nan" refers to grandmother?
Well she doesnt deal well with stress or making decisions or basically being able to function properly in a situation like that. So my sister and I organised the whole funeral, wake and everything that came with it.
If you and your sister organized and paid for the funeral and wake, the estate should cover the costs. Your aunt as executor should have paid all related bills. If not, you must invoice the estate for your personal costs - including transportation, phone calls, gratuities, etc.
Now i want to add here that i offered for 7 days in a row to go down and help out but she refused, id also like to add that it was quite common knowledge in our family that my nan had a draw with quite alot of money in it.
I assume “draw” refers to a bank account?
My Aunt had all ready sent all the furniture in a truck back to where she lives, she had sold the fridge, freezer, washing machine and dryer online, gifted my nans car to someone and also given away alot of other things.
This is an unethical act for an executor and absolutely immoral for a human being. As a grandchild and heir, you have a basic claim to personal possessions and keepsakes, and especially so if mentioned in a will.
The day after this i got a call from my cousin telling me that my sister, brother and I had actually been named as benificiarys as my father had already passed away and my Aunt had been named as a beneficiary and the trustee/ executor of my nans will.
I don’t know which country your grandmother and aunt reside. It seems like a third world country run by a dictator since your aunt is so blatant about flaunting the law. You use the terms "solicitor" and "nan" so I assume everyone was originally from the UK but lived or presently lives in Canada? Legal practice is to have a reading of the will by the lawyer/trustee or executor. You and your sister must have received formal written notice as beneficiaries; such letters, from my recollection, constitute part of the legal document package submitted to the courts to start the probate process. Any real property such as houses and bank accounts cannot be sold or transferred to beneficiaries (even by the executor) until letters probate is granted. Exceptions to this rule are for homes held in joint tenancy and joint bank accounts where the other joint holders are still living. If your grandmother had a home and bank accounts solely in her name, your aunt cannot touch those assets until grant of probate. This buys you and your sister some time. Be aware that once probate is granted, your aunt could easily sell the home cheaply to herself and create fictitious expenses to deplete the bank account leaving little or nothing as "proceeds of distribution" to the remaining heirs.. That can happen as an interim distribution before the Tax Clearance Certificate is issued.
Link: Can an executor distribute estate assets...
For the next 3 days my aunt ignored all of our phonecalls, emails and text messages for 3 days after she found out that we were in the will. So we just turned up at my nans house and my Aunt was dirty, she was so angry that we were entitled to between the three of us half of my nans livleyhood. She just didnt think that was fair or that we deserved it, she was rude, nasty, and said alot of horrible things about my mum, my dad and my grandmother.
Hopefully you saved all emails and text messages in more than one secure location, and kept a journal of phone calls with date/time and details. This would be useful if you wish to eventually pursue litigation.

Regardless of whether or not you and your sister deserve up to half the estate (and believe me, you do!) your aunt has both a legal and moral obligation to honour your grandmother's wishes in the will.
Another vital peice of the story is that about 6 months before my nan passed away my nan gave my Aunt quite a substantial amount of money which my Aunt told us that she had only been given roughly the amount it would cost for a funeral. But not long after this we told told my my nans 2 sisters and best friend on seperate occassions that it was around $200,000. This sum of money was given to my Aunt in the event of my nan needing to go into a care vacility, anything she needed, her eventual funeral costs etc.
Your aunt could claim the $200,000 was given freely by your grandmother for her personal use. Unless there is documented evidence to prove otherwise, simple hearsay from relatives would not sway a judge in your favour (it is her word against theirs).
So after i was told all of that we ended up getting our own legal advice which we were told that all the benificiarys should have already sat down and been read the assests that were ment to be divided etc. After explaining about her taking most things or giving away etc we were then told to write down everything that she had taken for for herself, what she had given away or sold and how much it was all worth and include the money that my nan gave her for her care because seen as my nan never got around to use it thenit would go back in as part of h er assests. So legally she now owed us the munortary value of half of my nans possesions.
This last statement is not a correct assumption. As executor, your aunt is legally entitled to a substantial fee from your grandmother’s estate being the executor, of her choosing unless a percentage is specified in the will. You might be left with only a mere fraction of the estimated amount of the estate - or nothing at all - after executor’s fees, probate costs, and your own legal expenses are taken into account.
I was under the impression that the trustee is in charge of making things fair, equal and legally bound to be honest?can she actually get in trouble with the law for doing all these things?
Yes, an executor can be sued but not in the usual sense, and must make things right financially if the courts rule in your favour. Furthermore, an executor can be removed by the beneficiaries filing legal application, but the chances of that succeeding are dependent on how strong a case you present to a judge.
Link: Can an executor be sued...?
I think she was the reasoning behind the first solicitor not doing what he was ment to, or maby i have it wrong and theres not meant to be a meeting and we are not ment to be told about what assets my nan had?? I also believe that she only left that firm because she wouldnt have disclosed to him about the money she was given by my nan or the fact that she was giving away our inheritance and that was all going to have to be reimbursed to us by her.

I doubt she has even told her new solicitor that we exsist because it has been 5 months since she has been with them. If she were to tell him that my dad never had children is the Solicitors legally bound to atleast try and find out?
Lawyers are retained by the executor, so their first obligation is to the client, and they act only upon the client's request and not yours (regardless of the fact you are rightful heirs). If you aunt lied and claimed the beneficiaries named in the will were already notified by letter, the lawyer would see no reason to dispute that.
I just think that she is trying to get it all for herself and cut us out of the equation. I have tried doing a few online will enquiries to see if its in progress or something, but I just cant find anything helpful. I really dont know where to go from here, so any help, clarifications or advice would mean alot. So hopefully you guys have some good advice for me.
This sounds like a logical and fair assessment. Greed knows no bounds, even among close friends and blood relatives.

Your aunt has a fiduciary duty to act sincerely on the wishes of your grandmother and needs to be reminded of that fact.

Before hiring a lawyer and putting yourself through a long, stressful and drawn-out legal battle, I suggest you make one last attempt at conciliation outside the courts. Do this, even though you think the outcome will be negative. Depending on the size of the residue of your grandmother's estate (i.e., portion of estate remaining after all expenses, bills, legal costs, etc. paid out) you may actually get more money by settling without going through a court battle (unless, of course, the estate is worth several million or more). If your aunt chooses to grossly inflate her executor’s fees, you would end up with very little at the end regardless.

Executor’s fees must be declared as income. If your aunt is going to cheat you, return the "kindness" and twist the knife just a little. Find out what the residue of the estate is, and report this "substantial undeclared income" to the Canada Revenue Agency if she resides in Canada.
Link: How to report tax fraud in Canada...

Link: Informant leads program...

After all the legal papers are filed and grant of letters probate is awarded, you have full access to the will as well as all the legal paperwork including probate documents.
Link: How do I get a copy of someone's will...

A letter to your aunt, detailing your terms of settlement, should be prefaced by the legal term “Without Prejudice” and should be a genuine attempt to resolve differences out of court. By the use of this term, you are protecting (but not necessarily preventing) the contents of the letter from being used against you in a court case. I would use a conciliatory tone, but include a firm statement that because of past actions in ignoring your requests for information, (1) you intend to file for her removal as executor if she does not meet at a time and place by mutual agreement to resolve matters of estate, and (2) if the courts rule in your favour as legal beneficiaries she would be obligated to personally pay back in the deceased’s estate – something that would cost her dearly.

Link: Legal explanation of "without prejudice"...

Link: How to remove an executor...

Link: How do I know a will has been probated...

Make sure you have someone with an excellent command of written and spoken English do a spell and grammar check on your letter. You have a lot of mistakes in your original post and shouldn’t make similar mistakes in a formal letter.

By all means, consult an estate lawyer – but only after you have researched into the legal roles of executor and beneficiary and have a general understanding of the process of probating an estate.

I am not a lawyer, but I probated two estates and filed letters of administration for one estate where the deceased died without a will. Presently, I am executor for two very close friends still living. With the latter, I would not hesitate to retain a lawyer and/or accountant if the complexity of the situation dictates that I do so.

Edit: some clarifications, corrections and added links.
Last edited by SAM3674 on Aug 13th, 2017 7:44 pm, edited 1 time in total.
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SAM3674 wrote:
Aug 13th, 2017 7:44 pm

I assume “draw” refers to a bank account?
My interpretation of "draw" is actually "drawer" so Nan kept a bunch of cash at home.
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Conquistador wrote:
Aug 13th, 2017 8:37 pm
My interpretation of "draw" is actually "drawer" so Nan kept a bunch of cash at home.
Thanks, that did come to mind after I reread OP. But keeping $200K in a drawer in this day and age? Very trusting of Nan :rolleyes:
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SAM3674 wrote:
Aug 13th, 2017 8:46 pm
Thanks, that did come to mind after I reread OP. But keeping $200K in a drawer in this day and age? Very trusting of Nan :rolleyes:
I think you're making quite a giant leap in equating the $200K given away to the amount that was in the "draw". That doesn't flow logically from the story but then it is a bit convoluted. I think OP's point was that the money in the "draw" was an unknown quantity so OP should probably just consider that gone.
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Conquistador wrote:
Aug 13th, 2017 8:57 pm
I think you're making quite a giant leap in equating the $200K given away to the amount that was in the "draw". That doesn't flow logically from the story but then it is a bit convoluted. I think OP's point was that the money in the "draw" was an unknown quantity so OP should probably just consider that gone.
"$200K in a drawer" was a little tongue-in-cheek. Yet possible if not plausible. There is/was a common (mis)belief among the older generation and especially immigrants that cash, being largely untraceable and therefore untaxable, meant your eligible pension income was maximized.

I am reminded of my own family history from a bygone era. My late father had a business partner who slept on the premises, paid no rent, and - it appears from a later revelation - absolutely no personal taxes. Apart from a company business account, he kept no personal bank accounts. My father received a tip from a mutual acquaintance that the former partner was leaving town, confronted him at the airport, and managed to get back his half of the most recent business receipts.

Upon checking the vacated sleeping quarters, my dad found a dilapidated cut-up mattress which served as primary storage facility for 10 years of closely hoarded cash. More secretive than a "draw". You might say that every night this guy was literally "rolling in dough"Winking Face .
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Look into whether resulting trust in the 200k applies. Get legal counsel.
I am happy to answer questions about my experience with Fido and Tangerine.

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