Will executor issues

[paris]

My father's cousin died in Ontario in May. Today my father received a copy of the will, and an Application for Certificate of Appointment of Estate Trustee. The document names my sister as the Trustee Applicant.

The will states that my father and my mother are the named executors. My mother died years ago, and my father didn't know he was named executor. My sister never told him. She found the will, took care of clearing out the room at the nursing home, and made the funeral arrangements.

The will states that it appoints my mother and father (or the survivor of them) as Executors. I don't understand how my sister would assume that means she should take over. I could have taken over if my dad didn't want to do it, or I have another sister that could have. My father is upset. He feels that information was purposely held from him. Can he stop my sister from becoming the trustee? He would like to do it himself with a lawyer, as there are now trust issues.

He will see a lawyer right away, but would like to know what to expect.

 

[dee_dub]

He can certainly try to stop the sister from becoming trustee. He can contest her application, and expect to file a countering application for a certificate. As the person named executor in the will, I sorta like his chances.

You should also know that under Ontario law, a person who becomes trustee of an estate with a will, who was not named in the will, usually will have to post a bond to protect beneficiaries in the event of improper administration of the estate. So the sister will need to cough up if she wants to become trustee, in case she screws up.

 

[paris]

Thank you dee_dub.

The will states that half of the estate goes to my mother and father. If they "both" fail to survive her, then it goes to their survivors. So while my sisters and I have received copies (I believe that is contingent interest), my father is entitled to the share, not us.

The problem is my sister who is applying has alzheimer's. It's actually her husband that would be handling things. There are trust issues there. My father doesn't really want to take on the task... he's 90, but he's not happy with the way this has been handled.

 

[dee_dub]

To my knowledge, "trustee by proxy" is not a concept known to Ontario law. If she has Alzheimer's and cannot or will not be handling the estate, there is no way she should be appointed with her husband acting for her. Somebody needs to do it directly. If not her because she is incapable, and if not your father because he's 90, who do you propose? Whoever it is, that person should apply to be named trustee, and should contest the sister's application.

 

[paris]

Today my sister was asked (by my other sister) why my father was told he was named as the Trustee in the will. She was shown a codicil that was made out in 1999. At that time my mother had gone to a nursing home, so my Dad's cousin named my first sister as executor. The codicil was not attached with the application or will that we all received. I don't know if the codicil states that my sister replaces my mother, or both of my parents.

I pointed out earlier that it's my sister's husband who's actually taking care of the estate. He said he already has 60 to 80 hours invested. We are still only at the application stage. I'm not sure what was involved in the hours he has logged, and don't know if he plans to bill for them. This is one of our fears.

He said there is a cousin's daughter who is a beneficiary who has been hard to track down, and that she lives in the U.S. and that fact makes things much more complicated.

My father is hoping that the fact that the codicil was not attached might mean that it voids the application. He's obviously not happy with this setup. We will probably dispute my sister being the Trustee due to her alzheimers. He would like my other sister and I to take over.

We are still holding our appointment with our lawyer on Monday, but I appreciate the help you have offered.

 

[paris]

Late to bringing this thread ahead, but wanted to update. It's been 7 months now.

We saw the lawyer and she did submit a letter to the executor's lawyer to ensure the codicil was legitimate, and pointed out that there were errors made in who received copies of the will.

Dad won't contest my sister acting as executor. He won't remove her as an executor on his own will either. Both my sisters and I are named. He doesn't want to hurt her feelings, and I understand that.

Regarding the current will... nobody has received an accounting or any paperwork at this time (except the initial notice of executor). My Uncle's lawyer sent a request in September for an estimate of the estate. My sister's husband is still managing everything for her. He said they should have received an estimate for the estate last week. He had various reasons for why it is taking so long. He also said he will not be doing any distributions ahead of time. He's going to wait until all the final paperwork is completed (including tax returns). It will be next August before they see any money.

My Dad and my Uncle are 90 year old twins. My Dad doesn't need the money, but is obviously hurt about the whole situation. My Uncle needs the money. Oh, and all the furniture and personal items of the estate were sold at auction. They weren't informed when the auction was happening, so they had no opportunity to buy anything they might want.

Sorry for the long rant. I hate to see something like this cause problems in the family.

I do have a question. Is the executor required to make an incremental payment? Can they really hold the money until the complete estate is settled? Is there a time frame that these steps should be dealt with?

Both my Dad and Uncle think they will be deceased themselves before this is dealt with.