Protecting Mom’s Money
Marilyn engaged Avoidprobate.ca to assist her with her mother’s estate. When her mother sold the family home and downsized, she was left with cash and other investments of over $600,000. Marilyn’s mother needed continuing income to support her lifestyle and she wanted to ensure that as much of her estate as possible would pass to her children. Unfortunately, much of the mother’s estate was in non-registered investments with a traditional bank, like GICs, and was not earning enough to fund her retirement properly.
Jason Laidler of Avoidprobate.ca transferred the mother’s money to insurance-based investments that earned her a much higher return but were not subject to probate. Upon the mother’s death, Jason was able to hand-deliver a cheque to Marilyn for well over $600,000 within thirty days of her mother’s passing.
Unfortunately, Marilyn’s mother had maintained an account with a traditional bank in which she had over $38,000. The bank insisted the estate be probated before they would release the funds and Marilyn spent the next year, and $3000 in lawyer’s fees, to secure the last of her mother’s estate. “I share my story with as many people as I can”, says Marilyn, “and I hand out Jason’s card to lots of people and I say call this man, he’ll walk you through it.”
A Common Mistake
Brad was managing the affairs of his elderly father and, when his father died, Brad was shocked to discover that he was not listed jointly on his father’s chequing account, something he felt sure had been arranged. The bank insisted on probate for the estate even though the chequing account held only $8,000. Most people are unaware that a bank account cannot be manipulated by anyone who is not listed on the account. There are a number of measures that can and should be taken to ensure that executors and those with Power of Attorney can access the accounts of those they assist and potentially avoid probate at the insistence of the bank.
Pecore v. Pecore Precedence
Mr. Hughes, a well-intentioned father of three adult children, puts money into a joint bank account with one of his daughters. He did so on the advice of his financial advisor in order to avoid probate fees. The father told the CRA that they were his assets and dealt with them in his tax returns. His daughter could not access the account without his consent. The residue of the estate was to be left to the daughter and her disabled husband, and there was nothing left to the other children. Upon the death of the father, the daughter claimed the assets as her own. As she was joint on the account, the assets passed to her directly. The husband, with whom she was divorced, sued. The daughter claimed that it was her father’s wish for her to receive all of the funds upon his passing (presumption of advancement).
The husband argued that she held the accounts for the benefit of her father’s estate and therefore it should fall into residue and be shared according to the Will. Thus, the issue was whether or not the daughter had possession over the bank account or if the account was part of the estate. The court’s decision surrounded the general issue of the operation of presumption of advancement.
The court held that in the absence of proof, the presumption of a resulting trust is a general rule for gratuitous transfers and the onus is placed on the transferee to show that a gift was intended. For there to be a valid gift to a single party, there must be evidence in writing to form a gift. No advancement was found here. In other words, the daughter was forced to share the money with the other beneficiaries, including her ex-husband.
Had Mr. Hughes or his daughter contacted the experts at AvoidProbate.ca, we would have been able to save them years of court battles, more than $100,000 in legal fees and, perhaps most importantly, his daughter would not have been forced to share the funds in the account which were close to $1,000,000 in value.
Talk to an Estate Planning Expert
Contact us for assistance with the planning of your estate plan. We will help to setup your affairs so that you can avoid the estate administration tax, otherwise known as the probate fee, and to ensures that your estate passes quickly and privately to those people and/or charities you wish to leave it to.