Deadman
Ottawa, ON
Male, 60
I help craft client estate plans; advise estate administrators and substitute decision-makers on their legal authority and responsibilities; and act as a mediator in estate disputes. In responding to your questions, I am providing legal information only; I am not giving legal advice and my response should not be construed as legal advice. Every situation depends on its own facts and you should therefore retain your own lawyer to obtain proper legal advice on your situation.
I am going to assume that by "writing" you mean document creation -- which in this day and age would normally be keyboarding or using voice-recognition technology, rather than handwriting.
How much time is spent on document creation and what kind of document creation will depend on whether you are focused on estate planning (in which case there will be, comparatively speaking, a great deal of creative drafting) or on estate administration (where there may be more time spent on document creation, but less creativity). Where you are retained to provide a legal opinion on an estate-related matter, there may be many hours of time spent in crafting it. If you have to conduct legal research in order to prepare your opinion, would you count those hours towards time spent?
Another feature of daily practice that makes it difficult to answer your question is e-mail. Lawyers in general spend a great deal of time in front of a computer screen, both sending and receiving e-mails. Depending on your workstyle, you may craft very detailed e-mails instead of composing letters. Does this count as "writing"
One observation I will make is that when I do not have my computer available to me for a particular day, I get very little work done. That would suggest that a very substantial part of my day is spent in document creation of one sort or another.
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Valerie:
As with many legal issues, much depends on the jurisdiction whose laws apply here. In Canada, there are two ways to designate a beneficiary for life insurance. One can either indicate that person on the insurance contract when you apply for it or sign an insurance declaration at some later time. There are no witnessing formalities -- which makes it easier from an evidentiary viewpoint to either forge or destroy an insurance declaration (especially because one does not have to submit an insurance declaration to the insurance company in order for it to be legally valid).
If you know which insurance company insured your mother's life, you can contact the insurer to see if your mother had designated a beneficiary at the time she applied for insurance or sent the insurer an insurance declaration later on. (It is the last-made insurance declaration that governs.) If you or your grandchildren are designated as beneficiaries, the insurer will tell you so. Otherwise, privacy laws may prevent you from finding out who, if anyone, was so designated. (If there is no designation, the privacy laws would likewise preclude the insurer from telling you anything, unless you are the personal representative of your mother's estate.) If there is such a declaration that names you and/or her grandchildren, it would be up to your mother's husband to show that she later changed or revoked it.
By the way, in Canada an insurance declaration can be included in a will, so you would certainly want to look at your mother's will to see whether there is an insurance declaration in it.
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Sean:
The responsibility of the administrator of an estate, broadly stated, is to preserve and protect the estate assets. You did not mention whether your father left a will. If he did, the will might have something to say about who, besides the estate administrator, should be responsible for the upkeep of the house. Assuming there is no will or, if there is a will, nothing in it would impose an obligation on someone else -- if anyone, it would likely be a beneficiary who will inherit the house (but not the entire estate) -- to bear the maintenance costs related to the house, maintenance costs would be a proper expense of the estate. That said, here are a few more specific comments:
1. A more accurate answer would require an understanding of context. Specifically, what is the anticipated disposition of the house in the course of the estate administration? Is it going to be sold on the open market or is it going to be inherited by one or more of the beneficiaries (if there is a will) or next-of-kin (if there is no will). If there is to be a sale on the open market, lawn care and other maintenance costs intended to preserve the value of the property on a sale would be entirely proper. In the latter case, you have to consider who is going to benefit from those expenditures.
2. Having a written consent from every beneficiary or next-of-kin -- assuming each of them is of legal age to consent -- who would be adversely affected by a proposed expenditure will protect you against later complaints.
3. Any expenditure for which such consents are not forthcoming should be reasonable in the particular circumstances.
4. What do you mean by the phrase "work done"? If you are talking about repairs or work of cosmetic nature that would be necessary to ensure that a good price will be obtained in a sale of the property on the open market, that is fine. But if you are contemplating a major renovation -- that is, some form of capital improvement -- that is a different story. Absent some specific authorization in a will, it would be wrong to take significant estate funds to improve the property if that improvement will be to the benefit of one beneficiary -- whether yourself or someone else -- to the detriment of other beneficiaries.
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Stoney:
To address your question, you have to start with two fundamental principles underlying succession law. First, the essential nature of a will is an expression by its author (the "testator") regarding the persons to whom, or the purposes for which, one's estate is to be given or devoted. Second, the fiduciary duty of an executor or administrator -- let's call him or her the "personal representative" or "PR" -- who accepts that role is to preserve an estate in order to carry out the testator's instructions.
A document that, while properly executed in accordance the relevant legal formalities, directs the PR to do nothing more than destroy the value of the estate would not be considered to be a will. Its author would be considered to have died intestate, with the result that his or her property would be distributed to the persons entitled in accordance with the applicable statutory scheme of entitlement. The PR's duty would thus be owed to those persons, even though the testator did not intend any of them to benefit from the estate. It would be no defence for the PR to assert that in destroying the estate value he or she was simply carrying out the wishes of the testator. And it does not matter that the testator personally could have taken such destructive actions while living.
How far the principle of preserving an estate ought to extend is evidently a subject of some disagreement among estates lawyers. I was surprised to hear a senior estates lawyer I know (and one whose knowledge of this area of law I highly respect) state that if she were appointed as the PR for a client whose will directed that he or she be buried wearing extremely valuable items of jewellery, she would follow those wishes. Her rationale was that In the Province of Ontario (as in many other jurisdictions), the PR has "control of the body" and is entitled to direct the funeral, if any, and the burial, if any, in the manner he or she sees fit. (Surprisingly as it may sound, if the will contains any directions regarding these matters, the PR is not required to follow them.) It is on that principle that this estates lawyer's view was founded. I disagreed with her for the reasons indicated earlier. To be fair to my colleague, I am sure that if her client had no other assets of any value, she might act otherwise. That is because there is an important limitation governing the actions of the PR in connection with that control over the body; namely, to incur expenses to that end that are reasonable, having regard to the size of the estate and the person's station in life. (I was once approached by a woman who was estranged from her family and who was dead set -- pardon the pun -- against making a will that directed her estate to be distributed to any charities. She wanted me to draft a will for her that directed her PR -- and she asked if I would agree to take on that role -- to spend as much of her money as possible on her funeral and burial and to bury the rest of her cash and assets with her. I declined -- as, evidently, did a number of other estates lawyers whom she had previously approached for that purpose.)
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