# Another estate question



## marina628 (Dec 14, 2010)

I did not want to bump the other thread which is about same topic but last week our friend died suddenly without a will.He has a house which is in his name only but his common law wife has lived in it with him for almost 20 years.He has adult kids but they have one child who is 16 together ,the adult kids seem to be looking for a payout already .She is planning to visit a lawyer herself but just curious what the law would say about this situation...


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## carverman (Nov 8, 2010)

marina628 said:


> I did not want to bump the other thread which is about same topic but last week our friend died *suddenly without a will.He has a house which is in his name only but his common law wife has lived in it with him for almost 20 years.*He has adult kids but they have one child who is 16 together ,the adult kids seem to be looking for a payout already .She is planning to visit a lawyer herself but just curious what the law would say about this situation...


Here's my opinion (I am not a lawyer). 
She needs to see a lawyer, because* IF *she is not considered "spouses of each other" and "joint tenants in common with right of survivorship" on the property title they lived in together, it will be more complicated... even if she has lived with the deceased for almost 20 years.
In retrospect..Arrangements should have been made for the inevitable..but now it is too late.

Here's some info on the subject ..
http://www.commonlawrelationships.ca/ontario/

*Property Rights*
Unlike a married spouse, a common law partner in Ontario has *no right to seek an equalization of net family property* (a division of assets). Each person keeps what is in his or her name. 
Joint property is shared equally and sold if necessary to divide the proceeds.

If one person is not satisfied with this result, they *can make a claim for what is known as unjust enrichment or a claim for a constructive trust. These types of claims tend to be complex, difficult, and uncertain*.


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## marina628 (Dec 14, 2010)

I think her concern is for her son , it is his home and he just lost his father,the deceased is only name on title and the mortgage .


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## Just a Guy (Mar 27, 2012)

Which province, the law varies in each.


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## carverman (Nov 8, 2010)

marina628 said:


> I think her concern is for her son ,* it is his home and he just lost his father,the deceased is only name on title and the mortgage* .


It's a bit more complicated then. If the father bought the house for his son, and did not put the son down on title as well as "tenants in common-right of survivorship" (where the son would have 50% interest in the property before the father passed away, I believe the property is part of the estate of the father, and now it looks like probate and probate fees will be involved to get the title transferred to the son.
If the father had a will and named the son as sole beneficiary of that property, it will be a lot easier to deal
with. 
However, a good real estate lawyer may know more about that.

In my case, my mother and I were 'tenants in common -right of survivorship, when I bought my house in 1996. Because I was still not officially divorced or legally separated, my mother stepped in to protect me and put down $20k along with my $10k down payment. 

We were both then made joint owners of my house (principle residence even though my mother lives in Toronto) . Last year when she had a heart attack at 89, we decided to do the transfer of her interest to me through a my lawyer and her lawyer in Toronto.

For the sum of $1 she gifted her interest in my home and principle residence to me. 
All I had to pay was around $270 for the legal costs. Now there are no encumbrances on my property. 

Had she passed away before this took place, then her interest in my house might have been included in her estate for capital gains purposes, even though the title would have reverted to me 100% at that point. By doing the transfer before she passes, her estate does not have to include any interest in my property.


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## marina628 (Dec 14, 2010)

It is Ontario and there is nobody on title but deceased .The son was born after he bought it and have lived as a family unit together under the one roof ,they did have joint bank accounts and all money in one pot and claimed common law on income tax.But looks like not cut and dry if the common law wife gets zero of the home .


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## Just a Guy (Mar 27, 2012)

You can find a quick summary here...

http://jonathanflawn.com/pdf/Dying Without a Will.pdf

Which doesn't really cover "common law" specifically...

Or, you can look at this.

http://digitalcommons.osgoode.yorku.ca/cgi/viewcontent.cgi?article=2250&context=ohlj

Which is a lot less clear because it's more leagal verbiage


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## carverman (Nov 8, 2010)

marina628 said:


> It is Ontario and there is nobody on title but deceased .The son was born after he bought it and have lived as a family unit together under the one roof ,they did have joint bank accounts and all money in one pot and claimed common law on income tax.*But looks like not cut and dry if the common law wife gets zero of the home* .


No, unfortunately it is not cut and dry in Ontario.

However, discussing it with a real estate lawyer may still reveal a possible option though.. especially if the son was named as beneficiary of the house in the father's will...but otherwise
the house just becomes part of the father's estate and probate will have to deal with it. 

This is why a will is necessary when you own real estate.
Otherwise it can be messy and expensive to boot, as the house has to be valued at the time of the father's death, and becomes an asset of his estate.. If the house is of considerable value, it will increase the
probate fees after the first $50,000 which is a flat rate of $250, I think.
($15 per thousand of estate value.) $100K = $1500 in probate fees, $500K value = $7500 in probate fees)
If there is a still a mortgage on it, that comes off the the proceeds of the sale as well as other
dispensing costs (real estate and legal closing costs).


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## MoneyGal (Apr 24, 2009)

Here are the rules in Ontario for the distribution of an estate when someone dies without a valid will: http://www.attorneygeneral.jus.gov.on.ca/english/family/pgt/heirclaim.asp

As the deceased's child, your friend's son has an equal claim on the estate to his (half-) siblings - all of the deceased's children are entitled to the same share. 

However, your friend has no automatic claim on the estate although she could sue the estate for support. The link I provided has basic information about how to make a claim against an estate for support, if you were financially dependent on the deceased and/or you contributed financially to the ownership of an asset to which you did not have legal title. 

Honestly, avoiding probate (technically estate administration tax) is the least of your friend's concerns at this point.


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## AltaRed (Jun 8, 2009)

MoneyGal said:


> Honestly, avoiding probate (technically estate administration tax) is the least of your friend's concerns at this point.


Agreed. The common law spouse does need a lawyer and is going to get something out of this because it was the matrimonial home, they lived in it 20 years, there is an underage child still at home, the common law spouse would have contributed to the relationship in some way, etc, etc. 

Goes without saying, but not only should the man have had a will, the 'spouses' should have had a cohabitation agreement. Why so many people are so pennywise and pound foolish defies logic.


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## marina628 (Dec 14, 2010)

Thanks everyone for your support ,one of the adult kids asked her after the service when the will can be read.She told them she cant deal with it now but the fact they brought it up so quickly was enough to make her think she has to talk to lawyer sooner than she wanted to.Not sure why people can't let people have a few days to grieve before they have their hands out ,the kids don't know there is no will yet.


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## carverman (Nov 8, 2010)

MoneyGal said:


> Here are the rules in Ontario for the distribution of an estate when someone dies without a valid will: http://www.attorneygeneral.jus.gov.on.ca/english/family/pgt/heirclaim.asp
> 
> As the deceased's child, your friend's son has an equal claim on the estate to his (half-) siblings - all of the deceased's children are entitled to the same share.
> 
> ...



from link provided above by MoneyGal


> When a person dies without a valid will, called "intestate", Ontario's Succession Law Reform Act sets out how the estate is distributed.
> 
> According to the Act, unless someone who is financially dependent on the deceased person makes a claim, *the first $200,000 is given to the deceased person's spouse if he or she has decided to claim his/her entitlement. The other possibility is to claim half of the net family property*. A lawyer can help determine which is the better choice.


From that link above, it sounds like she* may be able to put a claim in *through a lawyer if she was truly financially
dependent on the deceased over almost 20 years, and depending on her age that she can no longer work to support
herself.
However, the cost of this litigation may be quite substantial, especially if there are blood relatives that expect an inheritance from their father's estate decide to take legal action because of her claim.


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## MoneyGal (Apr 24, 2009)

Common-law spouse is not a "spouse" for the purposes of the distribution of the estate where there is no will. The spouse in this case is not entitled to a $200K share.


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## carverman (Nov 8, 2010)

MoneyGal said:


> Common-law spouse is not a "spouse" for the purposes of the distribution of the estate where there is no will. The spouse in this case is not entitled to a $200K share.


Yes, I know . I thought it may be a "long shot" but with expensive litigation and the lawyer would probably not give her any guarantees of winning against the estate. 
It is one of these sad situations in life, and the reason why people should make a will..just because you just never know when the Grim Reaper will come calling with your "number".:biggrin:

In my case, because I am on the hook by court judgement and post retirement judgement to pay my ex $300 a monthfrom my pension INDEFINITELY, I had to go to a lawyer and have my will drawn up to make sure she didn't get an automatic share from my estate, as my children are the beneficiaries. 
The ex's pension support deduction stops when my company pension plan is notified I'm gone. 

Of course, knowing her, there is probably from nothing stopping her from suing my estate and my children in lieu of "perpetual support". That would be sad, but it has known to happen.


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## lb71 (Apr 3, 2009)

In this case, the 16 year old is a dependent of the deceased, and would be entitled to support from the estate. 

This law firm believes the common law spouse can sue for support. Not only that, the firm believes the common law spouse would be entitled to equity if he/she contributed to building up the estate. For example, did she help pay for renos or repairs?

http://www.wagnersidlofsky.com/articles/intestacy-rights.php

Your friend needs to take to a lawyer. It is unfortunate the adult kids are already circling.


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## kcowan (Jul 1, 2010)

lb71 said:


> Your friend needs to take to a lawyer. It is unfortunate the adult kids are already circling.


I think adult children have a right like anyone else. It is good that they are upfront about it. One outcome from this is that at least two lawyers will make good money from the estate. So will the Ontario government.


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## Beaver101 (Nov 14, 2011)

carverman said:


> ...
> 
> Of course, knowing her, there is probably from nothing stopping her from suing my estate and my children in lieu of "perpetual support". That would be sad, but it has known to happen.


 ... are your kids not her biological kids? 

And so when she's gone, who gets her assets/estate? Is she expecting your kids to sue for her estate too?


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## carverman (Nov 8, 2010)

Beaver101 said:


> ... are your kids not her biological kids?


yes



> And so when she's gone, who gets her assets/estate? Is she expecting your kids to sue for her estate too?


I don't know. She remarried right after the divorce, and they have a valuable country estate property by the lake just outside of Perth. It depends I suppose on his will and her will. 

As far as my estate.. I have about the best protection from her that I can get right now with my will which was drafted up excluding her any rights to my estate, when the $300 monthly support stops coming in after my death.

However..she did try to put a lien on my property for $50k in case my Nortel employee life insurance was not in effect at the time in case I expired with no life insurance in 2003. The Nortel pension benefits expired in 2010, one year after they went bankrupt, and currently I have no life insurance in effect..but she doesn't know that, and as long as she gets her $300 a month ,she probably won't pursue this in a court motion..at least I hope not...but greed will determine that. She could end up suing her own children.


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## carverman (Nov 8, 2010)

kcowan said:


> I think adult children have a right like anyone else. It is good that they are upfront about it.* One outcome from this is that at least two lawyers will make good money from the estate. So will the Ontario government*.


Unfortunately in cases like this..that is probably the way it will go.


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## sags (May 15, 2010)

Everyone should be told distribution from the estate won't happen for at least 12-18 months or more. (the executor's year as it is known)

That may relieve the "immediacy" of making a decision and provide everyone with time to think about a fair solution that doesn't require a lot of legal litigation.

Explaining that litigation could set the distribution back another 5 years and drain the majority of the funds from the estate, may encourage a cooperative solution.

Letters or probate authorizing a representative of the estate are almost always required by the banks to access deceased accounts and investments.

Whomever is designated as that person, will have to inform all the beneficiaries of the problems and steer everyone towards an amiable solution.


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## Beaver101 (Nov 14, 2011)

^ +1 to sags' post


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## Beaver101 (Nov 14, 2011)

carverman said:


> *However..she did try to put a lien on my property for $50k in case my Nortel employee life insurance was not in effect at the time in case I expired with no life insurance in 2003.* The Nortel pension benefits expired in 2010, one year after they went bankrupt, and currently I have no life insurance in effect..but she doesn't know that, and as long as she gets her $300 a month ,she probably won't pursue this in a court motion..at least I hope not...but *greed will determine that. She could end up suing her own children*.


 ... I didn't know you can put a lien on somebody's property becuase they didn't designate you as a beneficiary. 
Aren't insurance and pensions supposedly to be creditors'-proof so to speak?

I think she would be nuts (if not financially feasible or practical) to sue her own kids ... I wonder what her kids would think if she did? Is she of sound mind???!


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## carverman (Nov 8, 2010)

Beaver101 said:


> ... I didn't know you can put a lien on somebody's property becuase they didn't designate you as a beneficiary.
> Aren't insurance and pensions supposedly to be creditors'-proof so to speak?
> 
> I think she would be nuts (if not financially feasible or practical) to sue her own kids ... I wonder what her kids would think if she did? Is she of sound mind???!


Don't know..we are not on speaking terms.

In the 1998 divorce judgement, the judge put down something about maintaining adequate life insurance to protect her INDEFINITE support, and she was to be the irrevocable beneficiary of that policy. 
I complied back then, and had to show the copies of the designation to the court as
proof that I complied with all the points of the divorce judgement. 
But then as the rumours of Nortel's demise started, she took me back to court in 2003,
to see if I still had life insurance designating her as IRREVOCABLE BENEFICIARY which I did until 2010.


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## gardner (Feb 13, 2014)

Anyone reading this thread still not have a will?


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## lb71 (Apr 3, 2009)

kcowan said:


> I think adult children have a right like anyone else. It is good that they are upfront about it.


Yes they do have a right. However, their dad passed away suddenly a week ago. Their top concern doesn't seem to be the loss of their dad. Waiting a few weeks would have been respectful.


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## marina628 (Dec 14, 2010)

The father was dead only 5 days when they asked about this ,he was in good health and a big shock to the family.The common law wife actually makes more than he did and she is the reason he was able to keep his home as she invested her money into much needed renovations over the years ,paid a share of the bills related to the house.She is not looking at what she can gain but the fact she is now left a single parent of a young son who she has to help through school and who knows what else.She does not want to be forced out of this home right now and uproot her son for his sake not her own wallet.
She is self employed herself as accountant and luckily for her she has years of receipts and credit card bills to prove her financial contribution to the property.The lawyer suggested she ask for her money back that she put in after sale of the house and have the kids split the balance.There is a mortgage and credit line but after all bills are paid including her money paid back there will be about $140,000 equity in the house.She has put in over $100,000 of her money for an addition to the property which is documented because she paid it over 4 years ,his life insurance of $50,000 is left to her and they did claim common law on income taxes so i guess there may be some CPP for her and her son.She is willing to 'buy ' the house and get a mortgage in her name but lawyer told her they need to pay off his bills and funeral expenses and kids math and hers may not come out same so most times it is best just to walk away and sell it.She knows she has no rights to the house except what she put into it and even that they could fight on.


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## marina628 (Dec 14, 2010)

I am so glad my brother did have proper legal advise before he passed,his estate was very easy to do as he sold all property and in the months before he died he gave away his money to who he wanted .It helped that my niece was 18 before he died and things have gone as he would have wanted to.I understand when there are kids from other relationships ,ex wives etc it is sometimes complicated.


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## MoneyGal (Apr 24, 2009)

In this case there are two separate problems. 

The fact that your friend was a common-law spouse is only a problem because there was no will. 

If a valid will had been in place, then she could have been named as the inheritor of the house and no one would be able to (successfully) challenge that. 

The issue is that *because* he had no valid will, and *because* Ontario's succession act does not recognize common-law spouses, she is effectively excluded from *automatic* inheritance of her deceased spouse's estate. 

If she had either (a) been his legal spouse, or (b) remained his common-law spouse but a valid will was in place, this problem would not arise. It is very unfortunate. Merely dying without a will is not necessarily a problem because the intestancy rules set out who can inherit an estate and in what proportions. It is having a common-law spouse die when you have no valid will.


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## carverman (Nov 8, 2010)

marina628 said:


> T
> She is self employed herself as accountant and luckily for her she has years of receipts and credit card bills to prove her financial contribution to the property.
> T*he lawyer suggested she ask for her money back that she put in after sale of the house and have the kids split the balance.*
> There is a mortgage and credit line but after all bills are paid including her money paid back there will be about $140,000 equity in the house.
> She has put in over $100,000 of her money for an addition to the property which is documented because she paid it over 4 years. .She knows she has no rights to the house except what she put into it and even that they could fight on.


Rather complicated it seems.
If she financially contributed to the property (repairs etc), over the years, that may be a moot point now, unless there was a legal arrangement between them. If the addition is on the same property with the deceased, with no legal paperwork/agreement on title...it could be considered a "gift" to the deceased ...and that may be it. 

Being on title is everything. That determines legally who owns the property and who the rightful heirs may be. 

As an example, my mother helped to pay off the mortgage on my marital home. In the end she lost all her money that she contributed because the court considered it was a gift to us..because there was no paperwork done at the time that it was a personal loan or a mortgage to be repaid..in other words it was not drawn up by a lawyer at the time, so the court ignored her request that she wanted the money she put in and the property was sold and the proceeds divided between us being spouses of each other.


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## CharlesF.Donahue (Jan 7, 2015)

The concern of his wife is genuine, she is a mother and it is obvious that she think about their children and home is one of the important property for which she has to take suggestions from a good lawyer. I think she has to take suggestions from a lawyer who is having a great experience regarding real estate or property.


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## marina628 (Dec 14, 2010)

I spoke to my friend this morning and she had a meeting with the kids and they dont want to pay her anything for what she put into the house but willing to split the equity between the kids.They agreed to pay his funeral , all taxes and his bills out of the sale of the house so she is going to put a claim on the estate for her minor son's support ,she and her son have to be out of the house by end of May according to the adult kids.She may be leaving before that time as she sees no point to do things on their time table and help them sell the house and keep it up.I will let you guys know when the dust settles


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## carverman (Nov 8, 2010)

marina628 said:


> I spoke to my friend this morning and she had a meeting with the kids and they dont want to pay her anything for what she put into the house but willing to split the equity between the kids.They agreed to pay his funeral , all taxes and his bills out of the sale of the house so she is going to put a claim on the estate for her minor son's support ,she and her son have to be out of the house by end of May according to the adult kids.She may be leaving before that time as she sees no point to do things on their time table and help them sell the house and keep it up.I will let you guys know when the dust settles


That is a very sad case Marina. 
It wasn't mentioned, (at least I didn't see it in your previous posts), but from the sounds of things, the adult kids were from a previous relationship/marriage, and they don't want anything to do with her. 

Very unfair in view that she sunk so much money into a house that she didn't own, or have any right to
as a "survivor" of that nearly 20 year relationship with him. 

Sounds like it could get nasty as family squabbles often do when everyone involved wants a piece of the estate.


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## kcowan (Jul 1, 2010)

She should immediately put a lien on the property for her documented costs. That should tie up the estate for as long as she wants.


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## Just a Guy (Mar 27, 2012)

It's rare that there isn't a dispute among family over money...I've seen millionaires fight over their parent's $100,000 house...

Personally, I don't get it. My family fought over who *had* to take the stuff as none of us wanted it. 

Last one to show up got it all.


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## marina628 (Dec 14, 2010)

He has 3 kids from his first marriage that range in age of 23-30 ,the 23 year old is still a student and his Dad was giving him about $8000 a year in support as well ,the oldest kid was not even speaking to dad at time of death so it looks like the 16 year old and 23 year old have some rights to support .I think the 23 year old is siding with step mom and probably feels the 30 year old should get nothing ,she has a very good relationship with the youngest child as he was only 3 when they got together .I don't think she will want to tie up the sale of house for a long time and taking the easiest path which of course is support for her son , if he goes to university he can be entitled to support for another 9 years and there seems to be about $200,000 after all bills are paid to fight over.


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## carverman (Nov 8, 2010)

marina628 said:


> He has 3 kids from his first marriage that range in age of 23-30 ,the 23 year old is still a student and his Dad was giving him about $8000 a year in support as well ,the oldest kid was not even speaking to dad at time of death so it looks like the *16 year old and 23 year old have some rights to support *.
> 
> I think the 23 year old is siding with step mom and probably feels the 30 year old should get nothing ,*she has a very good relationship with the youngest child as he was only 3 when they got together* .
> 
> I don't think she will want to tie up the sale of house for a long time and *taking the easiest path which of course is support for her son , if he goes to university he can be entitled to support for another 9 years *and there seems to be about $200,000 after all bills are paid to fight over.


Having to pay both child and spousal support while I was working ($2100 a month), I can understand about the concern for support....
however that being said..support for the child (up to age 25 while in university), is based on Family Law
guidelines and not Estate laws.

If the youngest was a "child of the marriage" (Ie; child from the first wife/relationship), maybe the father had an obligation to support his son..but now that he is deceased, it becomes a lot messier. 

Maybe she could start proceedings against the estate in Family Law court, which determines and administers and enforces child support based on a formula?

In my case, my support for my daughter, while in nursing school (Humber College in Toronto) was determined by the judge at time of divorce..$1100 per month until she graduated. The child support order was then sent to payroll (automatic garnishment from my pay), which had to forward the monthly support to FRO (Family Responsibility Office). 

I also had to maintain a LIFE INSURANCE POLICY to ensure that the amount of support times X years,
while my daughter was still considered 'a child of the marriage"..(wording from the judge in my divorce
judgement). 

The only way the support payments could be lifted is when my daughter graduated and there had to be a *mutual agreement submitted in writing from me and my ex *(agreeing to lift the support payments) voluntarily..otherwise it would be yet another motion to the court to lift the support order.

IMO, doing child support from an estate settlement may result in pitfalls that may not be foreseeable and un-enforceable, because once the estate is distributed..it's "case closed".


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## marina628 (Dec 14, 2010)

She consulted an estate lawyer first and the kids have not gone to any lawyer ,the kids all seem to be broke or at least living paycheque to paycheque so she has asked the youngest to talk to siblings to see if they can do some sort of mediation or at least agree that all they will do right now is sell house and pay the funeral and bills in his name only. If they don't agree this will be a long drawn our process I am sure ,for me I probably would just let kids split it and move on as right now each kid gets $50,000 and if they fight I am sure 50k in legal bills would be possible which may only result in minor kids getting extra 10-12k as I doubt the two oldest would deserve nothing.


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## carverman (Nov 8, 2010)

marina628 said:


> She consulted an estate lawyer first and the kids have not gone to any lawyer ,the kids all seem to be broke or at least living paycheque to paycheque so she has asked the youngest to talk to siblings to see if they can do some sort of mediation or at least agree that all they will do right now is sell house and pay the funeral and bills in his name only.
> 
> If they don't agree this will be a long drawn our process I am sure ,for me I probably would just let kids split it and move on as right now each kid gets $50,000 and if they fight I am sure 50k in legal bills would be possible which may only result in minor kids getting extra 10-12k as I doubt the two oldest would deserve nothing.


Ok, but going back to the issue of the youngest that she is seeking some kind of support from the estate.

1. Who's child is he?..from the first "wife"/relationship?... or from his and her relationship? 

You mention that "he was only 3 when they got together"...without a marriage certificate..proof of paternity may be necessary for the youngest to get support because they were living common law and (I presume here. that he was born out of wedlock BEFORE they started to live together at the same address?)

If this is the case, I suspect that the court (which ever one) will need proof of paternity to determine if the youngest is a blood relative..entitled to support.

The deceased father's DNA should be collected before burial or cremation as well.

In an estate dispute..the "blood relatives" are equally entitled to the share of the estate.
it doesn't matter if one of the son's and the father were not on speaking terms..probate court
treats all "blood relatives" equally. 

Just my opinion, of course.


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## carverman (Nov 8, 2010)

If she wants to seek support for the youngest son, (or ensuring that the youngest is entitled to an equal share of the estate): 

I forgot to add above, that if the youngest child was born when she was living at a different address (not directly cohabiting with the deceased), that the DNA proof of paternity may be necessary to support the legal status of the child in question.
Otherwise..there may be questions raised as to who's child he is? 

She may wish to make a notarized legal declaration that the child in question was a result of their cohabitation or union to support the claim. 

Just some ideas...I'm tossing around.


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## humble_pie (Jun 7, 2009)

carverman said:


> ... Who's child is he?..from the first "wife"/relationship?... or from his and her relationship?
> 
> ... proof of paternity may be necessary ... The deceased father's DNA should be collected before burial or cremation as well



too funny! oh my paws & whiskers carverman, u are getting it quite wrong again, as you are sometimes known to do!

it's transparently clear whose child is whose, whose child was 3 when they got together, whose child was born later, who was married to who & at which times. 

transparently :biggrin:


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## humble_pie (Jun 7, 2009)

marina i am so sorry for your friend's loss.

a big silver lining to this story is the speed & good common sense with which your friend is focusing on the best outcome for her child, even in her grief. It's a shame she has not been given peace to mourn for a time.

what i hear in your posts is that she already sees that the best outcome will be support for her son if he continues to universitiy, which will have to come from the net proceeds of the house sale. And the house cannot be sold if she initiates a legal fight to recuperate some of her construction & renovation costs.

you've told us that your friend is even thinking of moving out of the house before the May deadline, if doing so would be a more comfortable & more reasonable course of action for herself. Bravo!

but the newly-bereaved family should surely have to right to occupy their residence until the 16-year-old's school year ends, if they choose. I can't imagine a court or a judge or a family counsellor anywhere who would question such an accommodation.

a smaller mind might waste energy fretting about the cruelly short May deadline - i mean, whoever even heard of pushing a new widow & her fatherless child out of their long-time home with only 2 months notice? that's absolutely awful - but it does sound as if your friend has been able to rise above the offence & proceed with wisdom. Perhaps this is due to having such a sensible & good-hearted friend as Marina to consult?

the stumbling block i see, though, is that there's no trust nor any executor or trustee to hold funds earmarked for student support through university. So who should be charged with holding & administering any portion of the house sale proceeds that might be set aside for student support?


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## marina628 (Dec 14, 2010)

23 years old is from his first marriage , and 16 years old from the common law relationship.No issues of DNA as child was born when they lived together in the house which is subject of discussion .Thanks HP for sorting it out  The 23 year old looks at common law wife as his step mom and they are very close as Dad had custody of him most times when he turned into a difficult teen around age 14


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## marina628 (Dec 14, 2010)

The grandparents of the 16 years old has offered for him and his mom to move in with them immediately and I think they probably can support them during this awful time , we are good friends with many of the extended family members and she has been one of my best friends for at least 10 years ,we even bought cottages close together .Ironically they sold the cottage about a year ago and they planned to move this year into another property and actually get married but as we know life does not go as planned.I have never met any of his kids even though we have been invited to weddings etc of his family over the years.I have no clue about who would be in charge of the kids money ,I would imagine his mom is logical person or his grandparents , anyone but the siblings would be my guess.


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## carverman (Nov 8, 2010)

marina628 said:


> I have no clue about who would be in charge of the kids money ,I would imagine his mom is logical person or his grandparents , anyone but the siblings would be my guess.


Since the child is still a minor, a trustee has to be named and appointed to look after his support, I believe. 

That is the way it would have been done, had there been a will. A lump sum from the estate would go into the trust account to be administered by a trustee. Most wills would have provision for the care of any minor
children (if applicable).


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## humble_pie (Jun 7, 2009)

but there isn't any will nor is there any trust nor any trustee.

assuming marina's friend is not going to take the lawyer/legal action route because the costs will eat up all of the money ...

therefore the situation has to be settled by the principals.

first, it's great that there is a shared child - the 23-year-old - who can interface between the families. I just hope the burden doesn't become too stressful for him.

looking from the 2 older siblings' pov, both of whom stand to inherit outright, i cannot see why they'd agree to hand over an amount to a relative in trust "in case" a now-16-year-old might decide to attend college in the future.

what if he doesn't go to college? is the trustee supposed to hand back the money? why would the 2 older siblings trust a trustee who is a relative of the common-law wife to do exactly that?

it's fairly clear that the 23-year-old in college should receive support until 25 or until he graduates, whichever first occurs.

it's also clear that the 16-year-old should receive (technically his mother should receive for him) support until he turns 18 or whatever age is major age in his province.

after that, since there is no trust & no trustee & no clear indication that this lad will or will not attend university, it seems to me that principals wishing to avoid lawyers & desiring to come to a practical solution should make over a certain amount to the mother, in case the lad decides to pursue secondary education.

they could/should make this amount over in outright ownership, renouncing to any idea of ever getting any of it back if the lad fails to go to college. Therefore, il va sans dire, such an amount will be far less than any full support amount that might have been paid from age 18 to age 25 to a college-attending student, had the father been alive.

another way of looking at this payment, earmarked for the 16-year-old's use should he go to college but not binding, is to view it as an outright personal payment to the common-law wife, with no strings attached. That, probably, is how the 2 older siblings are going to view it. They might feel bitter about this payment at first but - if they are wise - they should be willing to accept it as a sensible mediation. Which is why the amount would be less than the full amount of university support that might have been provided by the father *if* he had been alive.

meanwhile, i believe the mother received the $50,000 insurance policy? she has had a nice home all these years, she has the 16-year-old boy to love & be grateful for, her own family is being supportive, she has friends like Marina? life may not be fair but not all is lost here.


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## humble_pie (Jun 7, 2009)

carverman said:


> Since the child is still a minor, a trustee has to be named and appointed to look after his support, I believe.
> 
> That is the way it would have been done, had there been a will. A lump sum from the estate would go into the trust account to be administered by a trustee. Most wills would have provision for the care of any minor
> children (if applicable).




so sorry, not quite true, we are off course again.

the 16-year-old has a surviving fully-functional parent, so there is no need for any trustee, tutor or guardian. He is not an orphan.

the mother has full custody & control. Any payments for financial support of the 16-year-old will be made directly to her.

after the lad reaches the age of majority is another story, but here the modest financial facts suggest a settlement rather than an impossibly expensive 3rd party professional trustee over a period of up to nine years (professional trustee fees are so high that they would encroach upon the capital; a very small trust would be devoured by the trustees within a few years.)


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## marina628 (Dec 14, 2010)

The grandparents are the parents of the 16 year old father not the Mom ,all the family of the deceased are just as upset he did not think to have a will and protect his son and partner of 20 years.She has the ability to support herself and her son and yes she will get this insurance money ,I believe if the older kids left it alone at least for a while til the school year was out she would probably buy the house from estate and may have been better for everyone .She and her son spent one night in the house since father died by choice as they really need the extended family now and there is not enough money to fight for a trustee etc and my friend understand this ,she also don't see the point to fight and all kids lose out including her own and obviously her step son that she considers her own son.Some compasion and fairness would go a long way , splitting things 5 ways with her getting a share would probably be fair too.


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## humble_pie (Jun 7, 2009)

^^


i'm glad these grandparents are in the picture, they are another positive element. 

it wouldn't have occurred to me that "the grandparents" would be the parents of the late common law husband, i'd assumed they were your friend's own parents.

but their participation is excellent, they can support the 23-year-old as he interfaces between the 2 families & they can help him mediate. They are, after all, the grandparents of all 4 heirs. Three family members mediating will be so much more effective than one, imho.

just so i'm clear, are these also the grandparents that the new widow with her 16-year-old has gone to live with, for the time being? these are the grandparents who will even offer financial support if necessary?

if so, the story is looking better & better every minute. Such grandparents will not allow the 2 oldest siblings - nor any of the heirs for that matter - to damage the well-being of the bereaved. 

as you say, there are many ways to resolve the issues. If your friend considers carefully & comes to believe that the house will make a good permanent home for herself & her 16-year-old, surely it would be possible that she could buy out the interests of the actual 4 heirs? if this is the best practical decision for herself & her son, how could there be any monetary reason for the 2 older half-siblings to oppose?

it's a good thing she has you for a friend, Marina. Although it sounds like she is managing splendidly herself.


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## marina628 (Dec 14, 2010)

Yes these are the grandparents where they have been staying ,the mom's parents died a few years ago so the 16 year old only has one set of living grandparents.The father had his attack at home so I think that is making it tough for them to return to the home right now.There won't be much of a update for a couple weeks as one of the kids is leaving today for a vacation that was booked long before these things happened which may be a good thing .


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## OhGreatGuru (May 24, 2009)

Just to throw another monkey wrench in the works: I don't think anyone is authorized to sell the house until either an executor is appointed or Letters of Administration are received from the province. No on else can act on behalf of the deceased person. Is your friend content to let the older siblings apply for Letters of Administration? Given what we have heard so far I would be concerned if they would actually live up to any verbal agreements they may have made. On the other hand it may be worth her while to dump the whole problem of settling the estate on the older children.


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