Canadian Last Will & Testament?
Jul 23rd 2010, 1:28 am
#46
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Re: Canadian Last Will & Testament?
What if you have been in a common law situation for a very long time? For example, 25 years, in the UK. If the house is only in one persons name, does the un-named person have no claim to that?
Jul 23rd 2010, 1:37 am
#47
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Re: Canadian Last Will & Testament?
If you have a will, and one partner pops their clogs, are the bank still likely to freeze everything until probate is sorted out? I am perhaps mis-understanding this?! If there is a will, then presumably there is an executor, and is it that person that takes responsibility for the estate (and bank accounts etc)? I presume a Grant of Probate means a final document that all has been sorted out, and could take weeks or months?
The reality of banks freezing joint accounts would give me nightmares and prompt me to finally get this sorted out!! How can you pay for the funeral and buffet if your pennies are frozen
And JAJ mentions a good point for having single accounts anyway - I think this is what I call my "Running Away Fund"
The reality of banks freezing joint accounts would give me nightmares and prompt me to finally get this sorted out!! How can you pay for the funeral and buffet if your pennies are frozen
And JAJ mentions a good point for having single accounts anyway - I think this is what I call my "Running Away Fund"
Whether a bank will freeze assets in a joint account depends upon the bank and how jobsworth the person at the bank wishes to be. Most of the time (as has been explained above) it is not an issue. However, as I have stated above, I have had to make applications to allow people access to their own accounts when they have been frozen. Think of it as similar to when CIC demand that the father of a child born outside of wedlock provides his permission to remove the child from the UK even though, under UK law, no such permission is necessary.
Jul 23rd 2010, 1:42 am
#48
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Re: Canadian Last Will & Testament?
OK so can I confirm something?
In AB... so far no will set up, house in hubby's name, I take it that I would have issues if he were to be run over by a bus tomorrow (we have 4 kids btw)... The car is also in his name but I am less bothered about that, it is the house that REALLY concerns me! (mostly cos the car is not all that expensive and I don't like driving anyway)
And the other question to ask is what would happen to the bank accounts... atm I am not working, hubbs is (I am going back to school to study as a massage therapist in September) - any potential issues with our shared bank account (a normal checking account with some associated savings accounts (the kids "pocket money ones" Children's accounts with hubbs and me on them as well so we can transfer cash as needed) and a line of credit
The main issue we have is that we have the kids, they are under 18 and we have no one (no family - parents dead, no siblings on either side) to allocate as guardians for the kids.... also no friends close enough in AB that we feel we can say "hey if I snuff it tomorrow will you take 4 kids that are not your own?"...
We intend to get wills made up but it is that guardian issue that is our main prob ...
Of course we could always do just as hubby has just said - both of us are not allowed to snuff it till eldest kidlet is 18 and at that point we can appoint her as the guardian for the younger ones
In AB... so far no will set up, house in hubby's name, I take it that I would have issues if he were to be run over by a bus tomorrow (we have 4 kids btw)... The car is also in his name but I am less bothered about that, it is the house that REALLY concerns me! (mostly cos the car is not all that expensive and I don't like driving anyway)
And the other question to ask is what would happen to the bank accounts... atm I am not working, hubbs is (I am going back to school to study as a massage therapist in September) - any potential issues with our shared bank account (a normal checking account with some associated savings accounts (the kids "pocket money ones" Children's accounts with hubbs and me on them as well so we can transfer cash as needed) and a line of credit
The main issue we have is that we have the kids, they are under 18 and we have no one (no family - parents dead, no siblings on either side) to allocate as guardians for the kids.... also no friends close enough in AB that we feel we can say "hey if I snuff it tomorrow will you take 4 kids that are not your own?"...
We intend to get wills made up but it is that guardian issue that is our main prob ...
Of course we could always do just as hubby has just said - both of us are not allowed to snuff it till eldest kidlet is 18 and at that point we can appoint her as the guardian for the younger ones
If he dies without a will (intestate) his estate will be distributed in accordance with the instestacy rules (too complex to discuss here). In essence, you would be granted a specific portion of his estate, as would your children.
Guardianship is a whole other issue. If you were both to die without wills or without some other provision to deal with guardianship, in essence, your children will become wards of the State until such time as a member of your family from the UK (if one exists) came to Alberta and applied to be a guardian. Yes, this means foster homes for your children.
Get your wills sorted soonest
Jul 23rd 2010, 1:47 am
#49
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Re: Canadian Last Will & Testament?
They may do under trust law. Very basically, if they contributed to the purchase price or directly paid the mortgage or performed work on the property, they may be entitled to a share of the equitable interest (the monetary value) of the property. However, they will never been entitled to the legal interest (legal ownership) unless they are on title.
All property is held in trust. The trustees (the ones on legal title) hold the property on behalf of the beneficiaries (those with an equitable interest). Usually, these two groups are the same people. However, sometimes they are not (for instance, when the property is a child`s but the child cannot be on legal title).
It is the law of constructive and resulting trusts.
Jul 23rd 2010, 1:55 am
#50
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Re: Canadian Last Will & Testament?
Every common law jurisdiction has statutes that override the original "common law".
Perhaps the time to ask a bank on their process for dealing with joint accounts and survivorship is before a death arises. Then if the response from the bank suggests ignorance of the law it can be challenged at the right level. Or a new bank found.
One also wonders if a bank or its employees could be exposed to legal action for illegally withholding funds from the rightful owner.
All that said, it is probably a good idea to keep some funds in individual names.
Perhaps the time to ask a bank on their process for dealing with joint accounts and survivorship is before a death arises. Then if the response from the bank suggests ignorance of the law it can be challenged at the right level. Or a new bank found.
One also wonders if a bank or its employees could be exposed to legal action for illegally withholding funds from the rightful owner.
All that said, it is probably a good idea to keep some funds in individual names.
I have sought costs from the bank when making applications. I have never been awarded them. From the point of view of the Courts, they want the banks to ensure that there is no claim on the account from beneficiaries (the deceased may have stated that $100 from account x held jointly with spouse is to be paid to Y) and the only real way to ensure that is for the person with access to the account to be an executor or Personal Representative. The only way to ensure that it for said person to hold a Grant of Probate or Letters of Administration.
Jul 23rd 2010, 2:24 am
#51
Joined: Jul 2007
Posts: 2,139
Re: Canadian Last Will & Testament?
They may do under trust law. Very basically, if they contributed to the purchase price or directly paid the mortgage or performed work on the property, they may be entitled to a share of the equitable interest (the monetary value) of the property. However, they will never been entitled to the legal interest (legal ownership) unless they are on title.
All property is held in trust. The trustees (the ones on legal title) hold the property on behalf of the beneficiaries (those with an equitable interest). Usually, these two groups are the same people. However, sometimes they are not (for instance, when the property is a child`s but the child cannot be on legal title).
It is the law of constructive and resulting trusts.
All property is held in trust. The trustees (the ones on legal title) hold the property on behalf of the beneficiaries (those with an equitable interest). Usually, these two groups are the same people. However, sometimes they are not (for instance, when the property is a child`s but the child cannot be on legal title).
It is the law of constructive and resulting trusts.
The property is currently willed to 3 children, my suggestion was that the will be ammended to say that the 3 benficiaries cannot sell the property or evict person B until such times as person B's demise. I don't know if that has any legal standing, or worth, or not.
Jul 23rd 2010, 3:00 am
#52
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Re: Canadian Last Will & Testament?
Thank you AC. I suppose the concern is that, in the event of person A's (the owner) demise, that person B would not be booted out on the street after living (and contributing) to the house for the past 25 years.
The property is currently willed to 3 children, my suggestion was that the will be ammended to say that the 3 benficiaries cannot sell the property or evict person B until such times as person B's demise. I don't know if that has any legal standing, or worth, or not.
The property is currently willed to 3 children, my suggestion was that the will be ammended to say that the 3 benficiaries cannot sell the property or evict person B until such times as person B's demise. I don't know if that has any legal standing, or worth, or not.
Last edited by JonboyE; Jul 23rd 2010 at 4:37 am.
Jul 23rd 2010, 3:13 am
#53
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Re: Canadian Last Will & Testament?
Thank you AC. I suppose the concern is that, in the event of person A's (the owner) demise, that person B would not be booted out on the street after living (and contributing) to the house for the past 25 years.
The property is currently willed to 3 children, my suggestion was that the will be ammended to say that the 3 benficiaries cannot sell the property or evict person B until such times as person B's demise. I don't know if that has any legal standing, or worth, or not.
The property is currently willed to 3 children, my suggestion was that the will be ammended to say that the 3 benficiaries cannot sell the property or evict person B until such times as person B's demise. I don't know if that has any legal standing, or worth, or not.
In the situation you describe above, it would appear that the person who is not the owner (let`s call him A) is only entitled to the equitable interest in the property. They have no "legal interest" to the property. That being the case, if the children wanted to realise their equitable interest in the property, there would be an argument as to which interest trumped the other.
I am not aware of the interest in possession that JonboyE has referred to above. That doens`t mean it doesn`t exist, just that I haven`t heard of it. I am not a trust expert and would never profess to be but, when it is considered that all A has is a potential equitable interest (and that is not certain based on what you have stated) it would seem wrong to allow A to remain in the property indefinately, when the equitable interests of the children are at least, and may be much stronger, than A`s. A`s interest can be adequately compensated for by a payment to A once the property is sold (as that is his/her only interest in any event). Allowing A to remain in the property is likely to be a bridge too far so to speak.
Without looking into this further, those would be my thoughts.
Jul 23rd 2010, 3:55 am
#54
Joined: Jul 2007
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Re: Canadian Last Will & Testament?
Thanks again AC, I appreciate your thoughts. I suppose the easiest thing would be for the 3 children to just allow the person to keep living there, without any legal to-ing and fro-ing. I see no reason that this will not happen, from a non-legal point of view, it should go without saying. Then again, I never underestimate the ability of people to be shits.
Jul 23rd 2010, 5:23 am
#55
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Re: Canadian Last Will & Testament?
Thanks again AC, I appreciate your thoughts. I suppose the easiest thing would be for the 3 children to just allow the person to keep living there, without any legal to-ing and fro-ing. I see no reason that this will not happen, from a non-legal point of view, it should go without saying. Then again, I never underestimate the ability of people to be shits.
Jul 23rd 2010, 5:46 am
#56
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Jul 23rd 2010, 2:46 pm
#57
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Re: Canadian Last Will & Testament?
One could make the observation that in a situation like that, the joint account holder who remains alive could simply withdraw the funds before telling the bank anything.
Jul 23rd 2010, 2:49 pm
#58
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Re: Canadian Last Will & Testament?
Although as noted in another post, if a bank account is held jointly, what's to stop the other account holder withdrawing it without telling the bank? Nothing, one would suspect.
I have sought costs from the bank when making applications. I have never been awarded them. From the point of view of the Courts, they want the banks to ensure that there is no claim on the account from beneficiaries (the deceased may have stated that $100 from account x held jointly with spouse is to be paid to Y)
Jul 24th 2010, 2:38 am
#59
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Re: Canadian Last Will & Testament?
Usually, advice in writing from the relevant department dealing with such issues is useful when dealing with whoever is on the front desk.
Although as noted in another post, if a bank account is held jointly, what's to stop the other account holder withdrawing it without telling the bank? Nothing, one would suspect.
Although as noted in another post, if a bank account is held jointly, what's to stop the other account holder withdrawing it without telling the bank? Nothing, one would suspect.
You are correct, nothing.
Don't forget, not all joint accounts are held by spouses. Adults and children are regularly joint account holders. Let's say the adult is the one that died, the child wants access to the funds for a vacation or special purchase, who is the bank going to allow to withdraw funds?
As I said above, these situations shouldn't really be an issue, unfortunately, frequently they are.
Jul 26th 2010, 9:58 am
#60
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Re: Canadian Last Will & Testament?
Well, I see I kinda opened a bit of a can of worms didnt I?
Thanks to all the responses and conversations.
I am still a little confused as to whether I need one or two wills ( one Canadian with Canadian Executor and one UK with a British Executor ) so I think I'll have to just bite the bullet and get some legal advice locally.
We also have the prob that my OH just like AirborneSapper is in the military and he has filed a basic will with them which does not allow for guardianship of our children. And of course has no bearing on my estate so I need to sort one out too.
So off to the lawyer's office tomorrow!
Thanks for your help
Thanks to all the responses and conversations.
I am still a little confused as to whether I need one or two wills ( one Canadian with Canadian Executor and one UK with a British Executor ) so I think I'll have to just bite the bullet and get some legal advice locally.
We also have the prob that my OH just like AirborneSapper is in the military and he has filed a basic will with them which does not allow for guardianship of our children. And of course has no bearing on my estate so I need to sort one out too.
So off to the lawyer's office tomorrow!
Thanks for your help
