Savings/checking account - beneficiary and successor | Page 2 | General financial discussion | Discussion forum

Luckily, my mother preplanned and prepaid her funeral. But we did add to the expense. Perhaps rules are different by province as her Credit Union said they would pay us for legit expenses before probate papers were provided.

Also keep in mind we presented the Will to the Credit Union and named me as the executor and the Credit Union only gives you the funds once you present the finalized papers from the probate court. It is the court that actually confirms you have presented the last Will and that you are the Executor. And also keep in mind the will can be contested and the contestor does not have to tell you. There is a time limit on contesting and only certain people are allowed to contest a will....I quess those rules can be based by provincial laws as well.

BC recently changed some of the rules that can put some older wills into jeopardy. Ie. all children must receive an even split of all the assets....

kanaka said

BC recently changed some of the rules that can put some older wills into jeopardy. Ie. all children must receive an even split of all the assets....

Yikes! That is alarming. Is this just directed at protecting minor children or does it apply to adult children as well? (And, then, of course, there's all the unacknowledged and illegitimate children! Could be a nightmare.)

There is a book that might help:

When I die : financial planning for life and death 2014, by Duncan, Garry R. (Toronto: Carswell, 2013).
Available in some public libraries.
There are older editions; be sure to get the most recent one, as rules can change.

I'm pretty sure the author is an accountant. This publisher is well respected in accounting and legal matters. I heard the author speak a couple of years ago and he seemed to know his stuff. He is in Ontario, so might not apply 100% in other provinces.

kanaka, where did you read that in B.C. all children "must" get an even split? I've read that if a will is "unfair or unreasonable" re a child or spouse then the courts can change the will, but you're saying it's much more.
I know a older lawyer in Ontario who is dismayed at the way today's lower courts routinely "make it up as they go along", i.e. disregarding law or precedent, and he says he frequently sees courts equalizing benefits to children when the deceased clearly didn't want that result. I've no idea if it's true but he says it's happening. If so, another reason to save money by not making a will. I know in Europe in some countries the law determines how much each child must get as a minimum, so maybe that's the trend here too. Not sure if gifting some to your "favourites" before death can thwart this, probably not.

Bill said

kanaka, where did you read that in B.C. all children "must" get an even split? I've read that if a will is "unfair or unreasonable" re a child or spouse then the courts can change the will, but you're saying it's much more.

I don't see anything in a 'discussion' of the BC Wills Variation Act that calls for equal/even split. It does comment about 'equity' which does not necessarilly mean equal, and further, various considerations are taken into account. http://disinherited.com/bc-wil.....-basics-2/ Think one would have to check actual case law to find actual 'trends'.

Rick said

THAT'S what I'm talking about. Glad it worked out for you!!

It really only works IF one can make quick transfers on the date of death. Continuing to use POA online access days (or weeks) after death is abuse of the law and leaves one very exposed to the law. I am guessing most banks 'religiously' look at newspaper and funeral home obits every day to freeze accounts that should have been frozen.

AltaRed said

I might add that on the day our mother died, we knew from the doctors and hospital that she was likely to pass within hours or days. I did an online transfer as soon as I knew of this situation and initiated a funds transfer from her investment account to her bank account immediately. The transfer was initiated hours before death and the funds were in the bank account the next day. That transfer became the source of funds to pay outstanding bills, including in this case, funeral expenses.

Had we not succeeded in this, either the funeral home would have to wait months to get paid (and it happens) and/or we, as ultimate beneficiairies would have likely paid these in the interim ourselves.

That wasn't necessary for the funeral expenses. Banks will release funds for funeral and other "testamentary" expenses. There's no liability for them to do so.

Under section 136 (Priority of claims) of the Bankruptcy and Insolvency Act, funeral and testamentary expenses incurred by the legal representative are first priority. Consequently, should there not be enough to pay all the creditors, no creditor would be able to take action against the bank for releasing funds out of the estate for funeral expenses. The funeral expenses would have priority anyways.

To protect themselves, the bank would wish to see a bill for the funeral expenses and likely make the cheque payable to the funeral home directly and not to the unconfirmed executor.

AltaRed said

Rick said

THAT'S what I'm talking about. Glad it worked out for you!!

It really only works IF one can make quick transfers on the date of death. Continuing to use POA online access days (or weeks) after death is abuse of the law and leaves one very exposed to the law. I am guessing most banks 'religiously' look at newspaper and funeral home obits every day to freeze accounts that should have been frozen.

In BC, such transfers to joint accounts will expose one to liability not only the estate but also to the beneficiaries of the estate. This is from BC's New Wills, Estates and Succession Act: A Summary of the Protections and Pitfalls in the New Legislation (March 2014) from the law firm McMillan LLP:

4. Beneficiaries will have additional ways to recover property that has "disappeared"

Joint bank accounts, jointly held real estate, and other jointly held personal property does not generally form part of a person's estate. Instead, this property usually goes directly to the joint-holder who survives – this is known as the right of survivorship. It is not uncommon for an aging parent to add one of their children as a joint account holder to help manage their financial affairs or for tax planning reasons. Upon the parent's death, that child would be entitled to the whole account.

Under the current law, the estate can sue to get that money back. However, only the person named in the will manages the estate (what the WESA refers to as the "personal representative"). If the personal representative refuses to commence a legal proceeding or, even worse, is the person who has benefited from the right of survivorship, a potential beneficiary cannot sue on behalf of the estate to recover that money. WESA now permits beneficiaries in this situation to commence an action on behalf of the estate with leave of the court.

Loonie said
....
I don't see how a Bnakruptcy Act would have anything to do with a solvent deceased person. One is left at the whim of the bank and/or executor regardless.

One can't tell for sure that if the estate is solvent or insolvent until the executor examines the estate and puts up a legal notice for creditors to submit their claims.

If the estate ends up being solvent, then paying the funeral expenses before actual probate won't make a difference to creditors and beneficiaries.

If the estate ends up being insolvent, then paying the funeral expenses before actual probate won't make a difference either to creditors and beneficiaries. The funeral expenses rank high in priority and would be paid first under the Bankruptcy Act.

Consequently, there's no reason for a bank to refuse to release cash in a deceased's account to the funeral home for the funeral. The bank's legal department knows this. Whether the branch staff one is dealing with knows this or not is another matter.