Q: Who is responsible for distributing property left in a will? What if
the person distributing the property disregards the will or is unaware
of the rules? How is property distributed when there is no will? What
if that person received incorrect legal advice from a lawyer? Does the
law society intervene in such cases?
A: One reason for making a will is to name an executor to handle your
estate. One of the duties of the executor is to ensure the directions
Read Also
Ask tough questions to determine if business still works
Across the country, a hard conversation is unfolding. Many producers are starting to ask a tougher question: can we keep doing this the way we always have?
are followed and property distributed according to the terms of the
will. If there is some uncertainty about the will, the executor’s role
would be to seek clarification from the court.
For example, assume a will made 30 years ago leaves $100,000 to the
College of Home Economics at the University of Saskatchewan. That
college was disbanded several years ago. Some of its programs were
amalgamated and some discontinued. What happens to this gift? Does it
go to similar programs, to the university generally or does it go to
the beneficiaries? A judge may have to rule on this question.
If there is no will, the property is distributed according to the rules
of the Intestate Succession Act. Each province has such legislation and
under such laws, property goes to the closest next-of-kin. In
Saskatchewan, the first $100,000 goes to the spouse and amounts over
that are shared with the children if any. If there is no spouse or
children, the property goes to the parents. If neither of the parents
survived the deceased, then the property is shared between brothers and
sisters.
In Alberta, the spouse is entitled to the first $40,000 and shares the
balance with the children. In Manitoba the spouse gets all the estate,
assuming that the children are hers and the deceased’s.
When there is no will, a family member or another person having an
interest in the deceased’s affairs can apply to be appointed
administrator and be responsible for ensuring terms of the Intestate
Succession Act are followed.
If an executor or administrator fails to follow the law, the person can
be called to account for her actions and could even be held personally
liable.
In the case of bad legal advice, the executor-administrator remains
liable but may have a claim of professional negligence. A court would
decide if there was professional negligence, not the law society. As a
condition of practising, lawyers must carry insurance to cover errors.
Don Purich is a former practising lawyer who is now involved in
publishing, teaching and writing about legal issues. His columns are
intended as general advice only. Individuals are encouraged to seek
other opinions and/or personal counsel when dealing with legal matters
