Learning that a loved one or friend who has passed away has left a gift for you in their Will, can be expected or in some cases, it can come as a surprise. You may be entitled to either (i) a legacy which can be in the form of a specific gift of personal property (i.e. a car, painting, jewellery), a gift of cash from a specified source (i.e. TFSA or specific bank account) or a general gift of cash (i.e. a specific sum of money) (a “Legacy”) or (ii) a share in the residue of the estate (the balance remaining after the payment of debts, expenses and taxes and specific gifts have been satisfied) (the “Residue”).
In part one of my three part blog series, I will look at what it means to receive notice of an interest in an estate. I will also discuss what to expect when you have be notified that you are entitled to a Legacy under the Will.
How will you be informed about your interest?
When a deceased dies leaving a Will and his or her executor requires a Certificate of Appointment of Estate Trustee with a Will (more commonly known as “Probate”) to administer the estate, under the Rules of Civil Procedure, any individual or charity named in a Will as a beneficiary (whether entitled to a Legacy or a portion of the Residue) is required to receive notice of the executor’s application for Probate. In most cases, a beneficiary will receive a letter from the executor or their legal representative advising them of the executor’s application and providing Form 74.7 – Notice of Application of Estate Trustee with a Will (the “Notice”). The letter will either provide a complete copy of the deceased’s Will in the case of the beneficiary being entitled to an interest in the Residue or provide the beneficiary with an extract of the provision in the Will which sets out the Legacy that has been left for the beneficiary.
If the deceased died without a Will, and you have an interest in the estate, instead of receiving the above referenced Notice, you can expect to receive a Form 74.17 – Notice of Application of Estate Trustee without a Will.
If the Will does not have to be submitted to the Court for Probate, you will likely receive a letter from either the executor or their legal representative providing you, in the case of a Legacy, with an excerpt of the applicable provision in the Will setting out your interest in the estate or where you are entitled to an interest in the Residue, a copy of the Will will be provided.
If you receive the Notice, you are probably wondering, okay now what? What do I need to do? There is no action required on your part if you receive the Notice of your interest in the estate. Depending on the jurisdiction, it could take anywhere between 2 – 10 months (no thanks to COVID) for Probate to be issued to the executors. During this time you may wish to seek additional information from the executors, or if you have concerns about the estate, you may wish to obtain your own legal advice.
If you have received the Notice and haven’t heard from the executors for several months, don’t hesitate to reach out to them. As mentioned above, often it takes several months to obtain Probate and begin administering the estate. The executors may also be addressing income tax matters and other administrative issues. This is the period of time known as the “Executor’s Year”. This concept of the Executor’s Year is meant to provide the executor with reasonable amount of time to put the deceased’s and the estate’s affairs in order.
You are entitled to a Legacy – now what?
If you are entitled to a Legacy, once the Executor is in a position to pay the Legacy, you should expect to receive a bank draft or cheque (where a cash legacy is payable) or the transfer of the specific gift (i.e. piece of jewellery or artwork) and will be asked to sign a receipt and acknowledgment, acknowledging receipt of the Legacy. Once you have received the Legacy (whether it be personal property or cash) and you have signed the receipt, your interest in the estate has been satisfied and there is nothing further for you to do.
Stay tuned for part two of this blog series where I will discuss what happens if you receive Notice that you are entitled to an interest in the Residue of an estate. In part three, I will discuss what happens if you receive Notice that your minor child has an interest in an estate.