# Question about an insolvent estate.



## dubmac (Jan 9, 2011)

Synergy said:


> That's what would be referred to as an insolvent estate.
> 
> http://estatelawcanada.blogspot.ca/2010/06/what-happens-with-bankrupt-estate.html
> 
> http://estatelaw.hullandhull.com/20...states-when-there-is-not-enough-to-go-around/


This is quite helpful Synergy - thanks.

We have a friend (about 67-8 yr old) whose uncle (78) just died from complications of cancer. He was unmarried, and had only one sister who is older (and well set up financially), and lives in Australia. He retired early after a career with CIBC - he probably worked for around 30-35 yrs with them, and had a small pension. He travelled alot -he didn't live extravagantly, but likely beyond the aount of income generated in his pension(s).

Initially, his condo was paid for, but then he took a reverse mortgage (maybe 2) on it to help may for his travel expenses - so he acquired debt. His condo is in disrepair.

He named the bank as his executor in his will, but the bank refused the responsibility. His neice (our friend) was largely shut out from (any remaining) assets - but I suspect that these would be minimal. His condo has "payments" forthcoming, our friend - his neice - has very little money - and would be unable to support/pay for any of these outstanding liabilities.

My question
1. Who would take over as executor if the stated executor refuses - for whatever reason.
2. How is an estate such as this one where the estate is likley in the red (debt) resolved? - who pays? - (It would surprise that the gov't pays - if so, why wouldn't all older folks go on a spending binge in old age?)


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## lb71 (Apr 3, 2009)

With respect to #2, the links provided by Synergy say that the creditors will have to take a haircut if the assets are not sufficient. The neice is not required to be the executor, but she would be compensated if she chose to be. If she is concerned about getting an inheritance, then she may want to be the executor to keep an eye on things.


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## humble_pie (Jun 7, 2009)

lb71 said:


> With respect to #2, the links provided by Synergy say that the creditors will have to take a haircut if the assets are not sufficient. The neice is not required to be the executor, but she would be compensated if she chose to be. If she is concerned about getting an inheritance, then she may want to be the executor to keep an eye on things.



so sorry but i couldn't agree with these statements.

there's no evidence so far in this thread that the niece was named executor. So far, the only executor mentioned - the bank - has refused the responsibility.

i have no experience with insolvent estates but every instinct would compel me to stay a million light-years away from one. If the niece is named as co-executor, she should determine if the estate will have the net liabilities that dubmac is describing. If so, she might consider promptly resigning herself. Every executor has the right to resign, in every jurisdiction in canada, i believe.

in such a case, i don't know who administers an insolvent estate. The public curator of the jurisdiction, perhaps?

in any event, such "administration" would be not much more than a free-for-all among the creditors, i would imagine, with the bank waiting in the lead to snatch up the condo ...

dubmac you have always been a good soul about helping various seniors, whether members of your family or friends, but in this case it appears that there is not likely to be any nice inheritance waiting for your friend in the end. The possiblity of a liability as executor or even as a registered interested party would make my hair stand on end.

might it not be a good idea to give her a little push, to start her running away in the opposite direction as fast as possible?


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## marina628 (Dec 14, 2010)

I am executor of my brother's estate and one thing pointed out to me by my brother is that I would then be liable for his debts which is why my brother left assets to me to handle that.My brother died owing a $2000 credit card bill and I can share that when I sent the death certificate to them they put the interest to 0% and I only had to pay 10 a month indefinitely which I did not do .I would not want to attach my name to an estate with no assets


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## fraser (May 15, 2010)

Not sure if it depends on the Province.

I know of someone who passed away in BC. To my knowledge there was no executor. But there was a fair amount of consumer credit card debt. The credit card companies tried to come after his brother but of course to not avail. His brother was not a co-signer on the application and therefore had no obligation whatsoever to pay. Same for a distance relative in Quebec who recently passed away with no executor but a fair amount of consumer debt. It got written off since there were no assets.


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## Synergy (Mar 18, 2013)

fraser said:


> Not sure if it depends on the Province.


I don't think it's province specific and I don't think debts can be transferred to an executor, beneficiaries, children, etc. Here's an interesting article:



> Debts aren’t transferred by virtue of marriage or death – not without your signature – even though spouses and children may feel they should clear up any outstanding money owed, said Margaret Johnson, president of Solutions Credit Counselling Service. “A lot of people want to do the right thing,” Johnson said. “The right thing is to pay debts that are yours. If they’re not yours, don’t pay them.” For example, if dad passes away but has a credit card bill and an unpaid line of credit in his name only, mom or the kids aren’t responsible for paying them, she said. “If there’s any money in his estate, his estate has to pay his debts,” Johnson said from Surrey. B.C. “But if there’s no estate, they just get written off.”


http://www.theglobeandmail.com/glob...it-the-bills-not-necessarily/article12521231/


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## Synergy (Mar 18, 2013)

Here's one instance where an executor may be held liable for a debt:



> The debts of an estate (including income tax) must be paid before any beneficiaries receive their money. If an executor ignores the debts and pays the beneficiaries, the executor may be held personally liable for those debts.


To further reinforce my previous post:



> If the estate is fully used up to pay the legally enforceable debts and expenses, and there are still debts of the deceased unpaid, the executor does not have to use his own money to pay them. That's assuming, of course, that the executor has not done anything fraudulent or negligent with the estate's money.


http://estatelawcanada.blogspot.ca/2010/04/as-executor-do-i-have-to-pay-deceaseds.html


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## humble_pie (Jun 7, 2009)

the way i see it, the total organic situation is far, far, far more than just an issue of whether an executor is or is not supposed to pay debts out of his or her own pocket.

question is why on earth would the niece want to even be involved in such a long-drawn-out PITA? if it's true there are net debts/liabilities, she does not have an inheritance & zero need to stick around imho.

i'm just writing this because black mac is such a nice guy & undoubtedly all his friends are equally nice folks with highly developed social consciences also; so i'm hoping the niece will hie herself far thence & not stick around for her conscience to start pricking her about how maybe just maybe she ought to start considering whether or not to pay off some of uncle's nasty little debts ...

it's the creditors' faults, they didn't check up enough on their debtor, i'm sure they have allowances in their books for cases like this.

thank goodness it's spring, the season of brisk cleaning. Black mac if the estate is in the red like you say, take a broom to it!


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## Synergy (Mar 18, 2013)

^ Personally I'd be inclined to steer clear of an insolvent / bankrupt estate. One of my Uncle's passed away unexpectedly (single / divorced for some time) and left an insolvent estate. Luckily there was a life insurance policy that was left to the children. The executors, two of his siblings took care of the mess. He'd been in trouble in the past (bankruptcy), so it was no surprise. 

Anyhow, according to what I've read even if you are listed as an executor in a will you can ask to be removed from the position.


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## dubmac (Jan 9, 2011)

Thnx pie, Synergy and others....
We'll learn more about the financial situation in time - his condo was located in a part of Vancouver on land that was "leased" to the owner (by a local first nations people) - hence the value of the condo is not as much were it on land that is not leased. We do not know whether the estate is insolvent or not presently...if not, then not by much. He would likely have had CPP, and OAS as income supplements as well - for what it matters. The neice, our friend, is an accountant, and she knows her way around most things financial, but I think she feels some (family) obligation to her now gone uncle to see that his affairs are wrapped up. 

My wife and I have urged caution in the extent to which she gets involved - and that she not sign anything that would link her to any outstanding debt or obligations.


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## OhGreatGuru (May 24, 2009)

I'm pretty sure in most provinces there is a provincial agency that has to take over if all executors are unable or unwilling to settle an estate. But someone has to inform them. I have been led to believe that probating estates is simpler in BC than some other provinces. If the bank is refusing to act, I think they may be obligated to send a form to (Public Trustee?) to that effect. Frankly, I think the bank should have informed the provincial agency immediately, as otherwise no one has authority or responsiblity to settle the deceased's affairs. If the niece has an interest in acting as executor, she can apply to the same agency to be appointed. (She can't just "take over", she has no authority to do so). Alternatively as resident next-of-kin she could ask to at least be kept informed of progress. But unless she has been named as a beneficiary, she may have little legal standing, as the sister is the nearest next-of-kin.

Unless an Executor mishandles the estate accounts or Estate tax returns , I don't believe they can be held liable for the Estate's debts. Otherwise, no one would ever agree to be an Executor.

PS. Why is the niece making this her problem? Unless she want to hire out her services to the sister in Australia?


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## fraser (May 15, 2010)

My advice would be to run...not walk. Who needs this?

And don't forget the old adage.......you can't get blood out of a stone.


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## dubmac (Jan 9, 2011)

OhGreatGuru said:


> PS. Why is the niece making this her problem? Unless she want to hire out her services to the sister in Australia?


She isn't making it her problem. ..but I am curious to learn how the legal system resolves matters like this one. In the original post I was curious to learn what happens when an executor refuses to perform the task of resolving an estate when the estate's assets are likely to be insolvent. 

I should add that she did, however, feel some kinship with her uncle. Tho he was a somewhat crusty & brusque man, and short on personality, she (and he) viewed one another as family - both unmarried, old, and single in a big, expensive city - I thin that the two had an "unspoken understanding" to take care of one another "to some degree" if one or the other ever became incapacitated. (The neice did have open heart surgery a few years ago). She visited him in hospital when he was sick, helped serve as liason between her uncle and hospital staff etc. 

The sister in Australia, by the neice's account wants only one heirloom from the condo - nothing else - but I don't think that the remainder would earn much in an estate sale.


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## carverman (Nov 8, 2010)

dubmac said:


> Thnx pie, Synergy and others....
> We'll learn more about the financial situation in time - his condo was located in a part of Vancouver on land that was "leased" to the owner (by a local first nations people) - hence the value of the condo is not as much were it on land that is not leased. We do not know whether the estate is insolvent or not presently...if not, then not by much. He would likely have had CPP, and OAS as income supplements as well - for what it matters. The neice, our friend, is an accountant, and she knows her way around most things financial, but I think she feels some (family) obligation to her now gone uncle to see that his affairs are wrapped up.
> 
> My wife and I have urged caution in the extent to which she gets involved - and that she not sign anything that would link her to any outstanding debt or obligations.


A condo on leased land...nasty. This is similar to a trailer on leased land in a trailer park. If you don't own the land, then you can be evicted by the landlord for non-payment. 
I'm surprised he managed to get a reverse mortgage (CHIP?) if he didn't actually own the land, but strange things do happen because they ownly give you up to 60% of what they think the place
is worth, the rest of the equity is used up in interest accrued over x years.
This is basically similar to the bumper sticker I sometimes see on seniors motorhomes.."We are spending our childrens inheritance".

Why not let the probate court handle it?


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## kcowan (Jul 1, 2010)

carverman said:


> Why not let the probate court handle it?


Probate court will assign a trustee and the niece can volunteer to help dispose of the personal items. They may not accept her help but at least she will be clean legally. If there is any remaining equity, the government will piss it away by their delays.


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## humble_pie (Jun 7, 2009)

dubmac said:


> She isn't making it her problem. ..I should add that she did, however, feel some kinship with her uncle. Tho he was a somewhat crusty & brusque man, and short on personality, she (and he) viewed one another as family - both unmarried, old, and single in a big, expensive city - I thin that the two had an "unspoken understanding" to take care of one another "to some degree" if one or the other ever became incapacitated. (The neice did have open heart surgery a few years ago). She visited him in hospital when he was sick, helped serve as liason between her uncle and hospital staff etc.



unspoken understanding is as unspoken understanding does, as mary poppins would say. Won't you please pass on to your friend our unanimous & hearty suggestions that she not take on any legal or financial responsibility for the estate.

it's fine to snaffle off the heirlooms, valuable or of sentimental value only, though. In fact i find myself wondering why she hasn't got these outta the house already.

ps the leased land detail makes me wonder whether this condo was built on/belongs to the well-known first nation on vancouver's southwest side, close to the water. Said to be one of the richest first nations in the whole of canada. Black mac this is off-topic but do they not have ambitious claims to greater vancouver's present-day territory?


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## carverman (Nov 8, 2010)

kcowan said:


> Probate court will assign a trustee and the niece can volunteer to help dispose of the personal items. They may not accept her help but at least she will be clean legally. If there is any remaining equity, the government will piss it away by their delays.


This is the best way out of this mess, if there is no money left. The gov't will have to deal with it..that's why we pay taxes. 

I once looked into this CHIP "Wouldn't it be nice" advertisement. They wanted $1500 up front for their legal and I would have to pay for the appraisal too ($2000 they would suck out of
their lumpsum payment right away. At that time any payouts would be subject to 8% interest when the standard mortgages were around 4.5%..almost double interest! I think they may be
a bit lower now that they are part of Home Equity Bank. 
Because you don't have to make any payments until you move/sell or die, I suppose it may be an option for some, but you end up paying a lot for
this tax free money, I suppose if you don't care about any beneficiaries and you just want some tax free money to travel and do stuff on your bucket list..maybe.


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## MoneyGal (Apr 24, 2009)

humble_pie said:


> unspoken understanding is as unspoken understanding does, as mary poppins would say. Won't you please pass on to your friend our unanimous & hearty suggestions that she not take on any legal or financial responsibility for the estate.
> 
> it's fine to snaffle off the heirlooms, valuable or of sentimental value only, though. In fact i find myself wondering why she hasn't got these outta the house already.
> 
> ps the leased land detail makes me wonder whether this condo was built on/belongs to the well-known first nation on vancouver's southwest side, close to the water. Said to be one of the richest first nations in the whole of canada. Black mac this is off-topic but do they not have ambitious claims to greater vancouver's present-day territory?


FWIW there are lots and lots (heh) of leased lots on First Nation lands across Canada. Most of them are cottage properties, not condos, but believe it or not there is an entire legal regime in place to govern leases with First Nation governments on reserve land. Totally separate issue from whether the community in question has unceded land claims against the Crown. See http://www.aadnc-aandc.gc.ca/eng/1327090675492/1327090738973 for more info.


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## carverman (Nov 8, 2010)

MoneyGal said:


> FWIW there are lots and lots (heh) of leased lots on First Nation lands across Canada. Most of them are cottage properties, not condos, but believe it or not there is an entire legal regime in place to govern leases with First Nation governments on reserve land. Totally separate issue from whether the community in question has unceded land claims against the Crown. See http://www.aadnc-[/QUOTE]
> Yes..lot...h is the main type of land ownership.[/QUOTE]


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## MoneyGal (Apr 24, 2009)

Yes. There are some pretty primo FNs lands across the country and lots of non-Native cottagers / leaseholders. The payments from these leases reduce transfers / dependency on the federal government.


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## dubmac (Jan 9, 2011)

The condo is located at False Creek - near the shore of False Creek- not far from Cambie street bridge in the city.


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## OhGreatGuru (May 24, 2009)

dubmac said:


> ...
> The sister in Australia, by the niece's account wants only one heirloom from the condo - nothing else -


This is actually quite irrelevant. The deceased's will determines who gets what. No matter how close a relationship the niece may have had, she is not entitled to anything if she is not mentioned in the will. (Subject to some other happenings mentioned below.) 

a) If the sister is the principle beneficiary, she could give part or all of her inheritance to someone such as the niece (there is no inheritance or gift tax in Canada - I don't know about Australia.) But she would have to receive it first, which requires that the estate be probated and legally settled.
b) I'm not sure if a beneficiary can refuse a bequest - I think I read a thread that said yes, but it would have to be done with legal affidavits through the estate trustee. I would imagine the bequest would then be re-distributed to other beneficiaries; or if there are no others, then it would fall back on provincial laws on how to divide an estate where a person dies intestate. The trustee cannot arbitrarily decide that "Oh since the sister doesn't want it, I will give the money to this nice niece even though she isn't mentioned in the will.)
c) I don't know if a principle beneficiary can simply direct a trustee to give their bequest to another person. But I suspect it would not be simple to do, if possible at all.


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## OhGreatGuru (May 24, 2009)

I have tried not to jump to conclusions, but the tenor of some of the questions coming on behalf of the niece have bothered me from the beginning of this thread. The niece seems to be under the impression that being appointed executor would entitle her to some part of the estate. Other than the provincially-prescribed administrative fee, that is not true. And if the estate is broke that fee will be zip. (Which may be why the bank refused to act as executors) It is the legal obligation of the executor to dispose of the estate in accordance with the will. As others have suggested she's probably best to steer clear of this mess, other than to inform the court of her personal interest in seeing the estate settled expeditiously for the sake of her uncle's memory; and to inform the court of any contacts she may have with other family members.


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## humble_pie (Jun 7, 2009)

(with apologies to black mac & his friend, who must find it peculiar that we are arguing about them as if they were unconscious & could not hear us)

guru i do beg to differ! we have not heard one word from the niece, how could we know what impression she may or may not be under. 

it was actually another poster who said upthread - quite wrongfully i believe - that if she wanted to inherit she should get herself named as executor. This is not true.

what we hear from black mac is on a different level altogether. A level that has nothing to do with money. We hear of a kinship bond between uncle & niece, a compassionate loyalty that seems to include at least affection if not love. How they looked after each other as best they could. We hear how the surviving niece wishes, quite simply, to do right by the memory of her relative.

nor do we hear anything about the australian sister as heir. In fact, i don't believe a will was ever even mentioned. For all we know, uncle may have left his entire estate to the local Stray Cat Benevolent Society.


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## carverman (Nov 8, 2010)

OhGreatGuru said:


> *And if the estate is broke that fee will be zip. (Which may be why the bank refused to act as executors)* It is the legal obligation of the executor to dispose of the estate in accordance with the will. As others have suggested she's probably best to steer clear of this mess, other than to inform the court of her personal interest in seeing the estate settled expeditiously for the sake of her uncle's memory; and to inform the court of any contacts she may have with other family members.


Lets assume there is NO monetary value in the estate. It will still cost the executor money out of their pocket to file the papers to settle the estate. Normally the filing fees come out the residual of the estate.
If the filing fees are a couple hundred or more, then that comes out of the executors pocket with no compensation from the estate..and that is probably as you say why the bank doesn't want to do it,
because their lawyers charge them money to handle the filing of the estate and they would be out money. The other issue is there is a dispute regarding who gets what and how much, lawsuits can be launched against
the estate and maybe even the executor..rare but it can happen. 



> When people appoint an executor (or, more properly, “estate trustee”) in their will, they are stating a desire that this person look after their affairs when they die. Normally, this implies getting that appointee’s consent before the will is written, and providing a copy when the document is complete.
> Whether or not that happens, *however, you don’t actually become executor until the person dies, and you are formally appointed by the court.* This means you have no legal right to see the will, or do anything else, before the time of death. It also means that, *when death comes and you do see the document, you have the right to refuse to act*. In this case, responsibility moves to the alternate executor, or, if none was named, to the courts. The latter is the worst-case scenario.


http://www.thestar.com/life/2011/11/02/a_person_can_refuse_to_be_executor_of_a_will.html


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## carverman (Nov 8, 2010)

OhGreatGuru said:


> I have tried not to jump to conclusions, but the tenor of some of the questions coming on behalf of the niece have bothered me from the beginning of this thread. The niece seems to be under the impression that being appointed executor would entitle her to some part of the estate. Other than the provincially-prescribed administrative fee, that is not true. And if the estate is broke that fee will be zip. (Which may be why the bank refused to act as executors) * It is the legal obligation of the executor to dispose of the estate* in accordance with the will. As others have suggested she's probably best to steer clear of this mess, other than to inform the court of her personal interest in seeing the estate settled expeditiously for the sake of her uncle's memory; and to inform the court of any contacts she may have with other family members.


I'm not an estate lawyer, nor do I play one on TV but...apparently not... ^^^^^^


> The first thing to understand is that simply because someone names you executor, you are not under any obligation to serve as such when they die.


http://www.thestar.com/life/2011/11/02/a_person_can_refuse_to_be_executor_of_a_will.html


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## MoneyGal (Apr 24, 2009)

It is the legal obligation of the executor, _if they accept the position of executor_, to dispose of the estate in accordance with the will. Naming someone an executor does not actually appoint them executor - their agreement is required.


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## MoneyGal (Apr 24, 2009)

(same with guardianship of minor children)


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## Rusty O'Toole (Feb 1, 2012)

It's a bit of a swizz to say no inheritance tax in Canada. The deceased is deemed to have sold or disposed of his property and income tax or capital gains tax is due as if he had sold it. Income tax/capital gains tax must be paid before the estate can be settled and this can take quite a while.


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## dubmac (Jan 9, 2011)

Pie, Carver and Guru, and others - many thanks for your comments, sentiments and perspectives, legal and other. 
I have sent several of these links (that you kind folks have found for her) from this thread to the niece. My note to her also mentions that my concern is for her to remain as unstressed as possible by these affairs, and get through the next while in one piece... We will see her again (probably have a dinner on the patio soon) sometime in next few weeks - I am respecting her need to move forward with some of these details given she is one of two relatives of the deceased uncle. 

The niece was aware that her uncle's financial condition was not ideal. 
That said, it was likely a surprise to learn that she was not listed in the will - bit then, we do not know when the will was written, or whether he knowingly avoided listing her as executor given his knowledge of his financial state of affairs. Uncle was quite secretive - (he had been quite ill in the last year, and did little to draw attention to his condition, but the niece I think was aware things were deteriorating). Perhaps he listed the bank as executor to protect his niece from any financial liabilities or obligations that he knew he had assumed - at this point, we do not know, nor will be perhaps ever know!

The niece and the aunt have teamed up, and have begun to assume some of the duties undertaken by an executor (the neice wrote the obit - I see it in the paper today) - but I did not asked whether she has taken the role of executor. I have not asked whether she has signed any legal documents - I doubt she has or will - she is not gullible or ignorant. She lives simply; a classic picture of a lass, now 65+ from a small village in Scotland. Not greedy. (She loves Scottish dancing, short-bread and Raebbie Burrnss etc). She has a small property (with a trailer) on one of the Gulf Islands - and rents a place in the city. She works as an accountant.


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## carverman (Nov 8, 2010)

MoneyGal said:


> It is the legal obligation of the executor, _if they accept the position of executor_, to dispose of the estate in accordance with the will. Naming someone an executor does not actually appoint them executor - their agreement is required.


MG..isn't that what I said in my post? 
In my will, I discussed beforehand with my brother (living in Toronto), whether he would accept being my executor. Problem is that he lives in Toronto and
all the legal stuff has to be filed here in Ottawa Carleton, (lots of running around filing this and do that), never mind disposing of the estate (house etc), 
so he asked me if I could find someone else, which I did I found a neighbour/friend. 

I asked her beforehand if she wants to be executor, as she already had experience being executrix? for her mother's estate. My brother is named as alternate executor.

If by some chance neither one wants to be my executor, (and I am still living at the time). I will have to find someone else here.


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## carverman (Nov 8, 2010)

Rusty O'Toole said:


> It's a bit of a swizz to say no inheritance tax in Canada. The deceased is deemed to have sold or disposed of his property and income tax or capital gains tax is due as if he had sold it. Income tax/capital gains tax must be paid before the estate can be settled and this can take quite a while.


There is no inheritance tax, but there are probate filing fees..


> So, an estate worth one million dollars could pay probate taxes of roughly $15,000. *The rate is only $250 for the first $50,000*, so the real amount of tax is $14,500.


See more at: http://www.mrwills.com/ontario-probate-taxes-new-rules-for-2013/#sthash.U4VkhbAK.dpuf

So as I mentioned, if the estate is insolvent, filing for probate, requires a lawyer..and that is going to cost PLENTY!



> If you decide to take an insolvent estate through probate, you will have the protection of the court each step of the way. This is the main reason beneficiaries decide to take the probate route to resolve an insolvent estate. *However, the protection comes at a cost. You will likely find yourself deep in debt to attorneys and the court at the end of an insolvent estate probate process because the costs are only exacerbated by the insolvency.*


Read more: http://www.finweb.com/retirement/what-is-an-insolvent-estate.html#ixzz31LBq1RRT


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## dubmac (Jan 9, 2011)

BTW - I made a mistake - the condo owned by the uncle is on land leased from the City of Vancouver, not on land leased from a First Nation Band. I learned this yesterday.


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## humble_pie (Jun 7, 2009)

black mac she sounds like a love. I'm sure she'll be fine with all this. Guid scottish ladies rarely get led astray each:

if she still has a key, though, i wonder whether she might scoot over to the condo & collect the small personal effects, both the sentimental treasures like old family photos & letters & also the gold & silver cufflinks, etc.


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## fraser (May 15, 2010)

Each Province has it's own Probate fees. Ontario and BC are among the highest. I believe that Alberta and Quebec are among the lowest. The latter represent the cost of a judge/court to actually sign off, the former are true taxes. 

It is fairly easy to do Probate on your own. I did it for my mother's estate in BC a few years ago. Bought the kit at Staples. Read it over twice. Filled in the paperwork, etc. and submitted the papers for Probate. As I recall, we paid a fee of $300. plus the actual probate taxes. 

Don't know if this is the same process if the deceased is insolvent. Best way to find out is to go into a courthouse and ask someone who deals with Probate (we found the courthouse in New West to be extremely helpful plus they can notorize (at a cost) the papers that require this). Just don't go in at the beginning or end of the month.


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## PrairieGal (Apr 2, 2011)

I don't think she can remove anything of value from the condo, at least legally.


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## OhGreatGuru (May 24, 2009)

PrairieGal said:


> I don't think she can remove anything of value from the condo, at least legally.


I agree, She would be opening herself up to all kinds of liability claims, and even claims of theft, no matter how agreeable the sister in Australia is. There may be other beneficiaries she doesn't know about; and the estate's creditors may have a claim on any valuable personal property. Legally the executor is the only one who can authorize this. She could do a good deed by informing the Condo management of her Uncle's death, and suggest they have the fridge, pantry, and medicine cabinet cleaned out (under supervision to make sure nothing valuable gets purloined) for public health reasons. (They likely have the authority to do this) In fact the condo mgmt (and possibly the party holding the reverse mortgage) might want to have the locks changed to prevent unauthorized access.


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## Rusty O'Toole (Feb 1, 2012)

Probate not necessary unless there is real estate involved. Unfortunately in this case there is a condo.


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## fraser (May 15, 2010)

Probate may be necessary in British Columbia -it does not matter if real estate is or is not involved. 

We had to probate-and pay the tax-even thought there was no remaining real property in the estate.

Royal Bank, as an example, will freeze any account with a balance in excess of $10,000. held by a deceased, assuming that it is not joint, until such time as the Probate certificate is presented. Same for term deposits. And the bank will also do an audit of the contents of the safe deposit box. This assumes of course that the deceased has an estate over the threshold.


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## dawne (Jan 18, 2014)

fraser said:


> Probate may be necessary in British Columbia -it does not matter if real estate is or is not involved.
> 
> We had to probate-and pay the tax-even thought there was no remaining real property in the estate.
> 
> Royal Bank, as an example, will freeze any account with a balance in excess of $10,000. held by a deceased, assuming that it is not joint, until such time as the Probate certificate is presented. Same for term deposits. And the bank will also do an audit of the contents of the safe deposit box. This assumes of course that the deceased has an estate over the threshold.


fraser: Where did money come from to pay probate and taxes? Was it out of your pocket or estate assets?


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## carverman (Nov 8, 2010)

dawne said:


> fraser: Where did money come from to pay probate and taxes? Was it out of your pocket or estate assets?



I realize you are asking "fraser".and I'm Not sure about BC..



> In some situations, the estate will lack the liquidity to pay the probate fee. This typically occurs when there is no cash in the estate (such as when the deceased’s bank accounts were held jointly with a right of survivorship) and there is an asset, such as a house, which the estate trustee requires probate to deal with.
> 
> In circumstances such as this, s. 4 of the Estate Administration Tax Act allows the *estate trustee to apply to the court for a grant of probate prior to the probate fee being paid.* In order to obtain probate in advance of the fee being paid, s. 4(2) provides that the estate trustee must file an affidavit (and such other material as the court requires) that satisfies the court of the following:
> 
> ...


read more..
http://www.torontoestatemonitor.com...p-i-need-to-get-probate-but-cant-pay-the-fee/


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## fraser (May 15, 2010)

I do not know about an insolvent estate. But, when I did probate the people at the court house who handled Probate were very good. They reviewed the documents that I had prepared (based on the kit that I bought), suggested a few changes, and even told me that they could notarize (for a small fee) three of the forms rather than having me take them to someone else. 

My suggestion would be to go down to a courthouse and ask them what to do. As I recall, in BC, I paid $25 each to have three docs notorized, a $300. Probate fee, and then the tax based on the value of the estate. These monies were paid up front. About a month later they called me to pick up the release document. It was a very straightforward process.

Where we lived at the time I believe that probate was required based on certain dollar value of the estate, regardless of the composition of the assets-ie, cash, real estate, etc. Prior to death we had transferred as many assets as possible out of the estate in order to avoid including them in the estate and having to pay probate tax on them. 

My guess is that IF the estate has enough money or assets the Province will want their 'pound of flesh'. Probate fees would come before any other creditors of the estate...they are paid up front. One of the documents that I had to complete as part of the Probate submission, and have notorized, was a statement that the estate had paid all of the income taxes owing by the deceased.

In our case, the bank deposits were in excess of $10K. RBC was adamant. They froze the bank account/term deposit on receipt of the death certificate (if you have joint signatures there may be 'wriggle room' here if you have not advised or given the bank the death certificate) until such time as I produced the Probate certificate. The bank had no idea if the estate was or was not solvent, only that it had a certain balance in the accounts.

I suspect that your library may in fact have a Probate kit in their reference dept. Your answer may be in that kit. Or just go to the courthouse and ask.


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## carverman (Nov 8, 2010)

fraser said:


> In our case, the bank deposits were in excess of $10K. RBC was adamant. They froze the bank account/term deposit on receipt of the death certificate (if you have joint signatures there may be 'wriggle room' here if you have not advised or given the bank the death certificate) until such time as I produced the Probate certificate. The bank had no idea if the estate was or was not solvent, only that it had a certain balance in the accounts.
> 
> I suspect that your library may in fact have a Probate kit in their reference dept. Your answer may be in that kit. Or just go to the courthouse and ask.


Same here in Ontario..if there is any money or financial assets (RRSPs), the bank freezes these accounts until satisfied with a copy of the death and probate certificate.
Your description of Pound of flesh..is pretty much the norm in most provinces, but they do give the estate a break if it's valued under $50k, and that means a separate valuation for any real estate. 



> In Ontario, a deceased’s estate has to pay probate fees on the gross value of the deceased’s property. The fees are equal to $5 per $1,000 for the first $50,000 plus $15 per additional $1,000.
> 
> The probate fees in New Brunswick are equal to $25 per $5,000 for the first $20,000 plus $5 per additional $1,000 of gross value.
> 
> ...


What may be a bit of a conundrum is the fact that the estate is insolvent. IE: no money to pay the probate fees on the gross value. In this case the "executor" or similar should consult
with a lawyer that is familiar with the probate process in the specific province.


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## fraser (May 15, 2010)

You could consult a lawyer. But it might be just as simple and cost nothing to attend at a courthouse and ask their staff. I found these people, at least in BC, to be extremely helpful. And most of them probably see many estates that pay expensive legal fees for something that is very simple and they could easily do themselves.

I have no issue in paying for legal services but there some things you can do on your own at much less expense. We did our own property transfer and probate. It was a snap. But,,,they were both very straightforward, we had the requisite documents so it was a matter of showing up at the courthouse and paying the admin fees. 

To my knowledge, the only provinces that do not charge a tax on estates are Quebec and Alberta. I believe that Ontario and BC have the highest estate tax rates in Canada.

One thing that we have learned over the past several years in dealing with Probate, wills, and several other legal issues is that everyone appears to be an expert and many seem to know people who had the exact same issue and how it was resolved.

Our experience has been that the pertinent and accurate information came from those who were truly knowledgeable on the issues on a day to day working basis-professionals and others. Going directly to this route saved us a good deal of worry and frustration.


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## RBull (Jan 20, 2013)

fraser said:


> You could consult a lawyer. But it might be just as simple and cost nothing to attend at a courthouse and ask their staff. I found these people, at least in BC, to be extremely helpful. And most of them probably see many estates that pay expensive legal fees for something that is very simple and they could easily do themselves.
> 
> I have no issue in paying for legal services but there some things you can do on your own at much less expense. We did our own property transfer and probate. It was a snap. But,,,they were both very straightforward, we had the requisite documents so it was a matter of showing up at the courthouse and paying the admin fees.
> 
> ...


Along with Nova Scotia. 

http://blog.taxresource.ca/tax-rates/probate-fees-by-province/


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## fraser (May 15, 2010)

I have seen the Canadian tax rates by province.

I was quite surprised to see Nova Scotia up there with Quebec from an income tax perspective. Not certain why I was surprised but I was. We do a proforma every year to estimate our taxes and then run them on the EY tax calculator that provides the 'bad news' for all provinces and territories.


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