The Patz McMillan Team

  Because you can't take it with you, someone else will decide what to do with what you leave behind when you die. Even if you do prepare a will covering your real estate and personal property, problems may arise, including those brought on by an incompetent or dishonest executor.

If you don't ensure disbursement details are legally clear in your will, your wishes may be open to interpretation by the executor. Beneficiaries, unhappy with executor activity or inactivity, may apply to the courts, but once lawyers are involved, the value of the estate may be in jeopardy. Wealth (even if it's only the family home) accumulated over a lifetime of hard work and saving may be gutted by legal interventions.

Appointing an executor is not a legal requirement, however, someone will have to oversee disbursement of your estate, so the choice becomes: appoint a person, corporate entity, beneficiary or someone that you know, or have the court decide on an executor after your death. The feminine form of "executor" is executrix, but just as "actor" is increasingly used to describe both sexes, executor will probably gain popularity as the single term used to describe a man or woman who is appointed by a will to administer an estate. Executors are also known as "personal representatives" and "estate trustees with a Will."

Ontario-based Wills and Estates lawyers Jordan M. Atin, Barry Fish and Les Kotzer know what consumers need to know about avoiding and resolving estate disputes. These lawyers pooled their expertise to write the well-received, plain-language reference guide, The Family War: Winning the Inheritance Battle. Fish and Kotzer, both of the Toronto-based law firm Fish & Associates, previously co-authored two easy-to-read consumer advocate books: The Family Fight: Planning to avoid it and Speaking of Wills: What You Should Know From a Lawyer's Perspective.

"An executor is a trustee so there are fundamental obligations that apply and these fiduciary responsibilities mean that an executor must always act in the best interest of beneficiaries,"Atin who acts as a mediator and lawyer in estate disputes for the estate litigation firm Hull & Hull LLP. He explained that the executor cannot benefit from the estate, cannot intermingle estate funds with their personal moneys nor purchase estate assets. This complex responsibility raises many issues for those considering an executor appointment, including:

• When investing estate funds, executors must abide by any legislated guidelines that exist or apply the "prudent investor rule," unless the will stipulates specific investment standards.
• Executors must answer to the beneficiaries for everything and produce financial accounts when requested.
• If the executor is abusing fiduciary duties to the beneficiaries or financial access to the estate, beneficiaries, estate creditors or anyone with an interest in the estate, may apply to the court for a passing of the accounts (audit) and even to have the executor removed.

The Family War details ten common mistakes made by executors, errors that could present financial trouble for the executor: personal financial risk to the government regarding tax issues or exposure to beneficiary law suits for damages. Mistakes include:

• Not maximizing the value of the estate by under-investing or by selecting speculative investments,
• Failing to completely research creditor claims so that funds are paid to false debts, or to fully research the deceased's accounts so that, after disbursement, valid creditor claims are made against the estate,
• Paying themselves inappropriately.

An executor does not have to take on the job when named in the will, but after accepting, a executor cannot resign without court permission. Although it is an honour to be appointed executor, this is a demanding, often high-stress job. Even if the estate has a legal advisor, the lawyer cannot be paid to carry out executor duties, nor can most estates afford to pay for legal advice on every executor decision. For instance, if the executor gives a necklace or other estate property to a neighbour who claims the item was their personal possession, how will beneficiaries react if further investigation would have revealed the items actually belonged to the deceased? The executor is responsible for inappropriate actions, uncompleted tasks and mistakes.

Atin, Fish and Kotzer loaded their books with relevant information and potential consequences to prompt family discussion while the parents are still alive to referee if concerns or conflicts arise. The Family War discusses many things than can go wrong without proper forethought, and is, therefore, an excellent preventative resource for executors, beneficiaries and those who will leave their lifetime of wealth behind.

Don't be surprised if the issues raised usually require legal solutions. Yes, the authors are lawyers explaining what they do and why, but estate law is largely common law or precedent law where dispute resolution involves both sides presenting their case and the judge deciding. As Kotzer says, "Judges like reasonable people and they try to punish unreasonable people."

When death and dying were not discussed openly, estate problems were also kept private. As life is increasingly lived out in the open, those who die before settling inheritance disputes, or without providing an up-to-date, legally-accurate will may be thought of as deliberately sending a negative message or punishment "from the grave."

As spending it all while alive becomes more common (and an increasing necessity), distribution of a lifetime of wealth and possessions will be just another part of living, hopefully reducing estate-depleting legal action and bitter family wars. In the meantime, financial need or greed, and emotional conflicts drive enough family disputes and legal battles to fuel a multi-million dollar industry.

"There is a lot more money out there [today]," said Kotzer. "You have the Baby Boomers, and a lot are debt-ridden, especially in the US, and the depression-era parents are dying and leaving their estates to their [Boomer] children. There's a lot of money to fight over. How else will a Baby Boomer get out of debt? The inheritance is the big boon to people -- I see it every day. Not in every case, but what I'm seeing a lot of is these people as waiters -- waiting for inheritance, waiting for mother to pass on ... ."


Written by PJ Wade