The Family War – Frequently Asked Questions

Les Kotzer

I co·authored The Family War: Winning The Inheritance Battle with Barry Fish and Jordan Atin.

Here are some Frequently Asked Questions from the book.

Dad died and I am positive that my brother had borrowed money from him and never paid it back. How do I prove it? Is it deducted from his share?

Proving that his debt is still outstanding may be difficult, especially if the matter has to go to court. Without proof, it will be your word against his. Hopefully, Dad kept a record of the money he lent, supported by a promissory note or other evidence of debt. If there is evidence of the debt, the court might look to your brother to prove that he paid the money back to your Dad.

Generally, debts owing by a beneficiary to the deceased have to be repaid or else they can be deducted from the share of the estate going to that beneficiary.

I am a co-executor of Dad’s estate with my uncle. We cannot agree on what to do with the estate, and in the meantime, the estate assets are declining in value. What do I do?

Executors must act together unless the WILL says otherwise. If there truly is a deadlock, you may each need your own lawyer. If the matter is incapable of being resolved and court proceedings are initiated by one or the other of you, the court may have to decide the matter. The court may order that one or both of you be removed and might even order that you or your uncle be replaced by a neutral person or financial institution.

My mom appointed me and my brother as “joint and several” powers of attorney. I don’t trust my brother. How do I make sure that he can’t do something with Mom’s money behind my back?

Being appointed “severally” means that each of the “attorneys” appointed in the Power of Attorney can act on his or her own without the consent of the other. It would be a good idea to notify the banks and request that they advise you of any transactions made by your brother. As an “attorney” you are entitled to have information about the accounts. Writing to your brother suggesting mutual co·operation is also a good idea. With this documentation, you will be able to show the court that you were trying to be reasonable.

I was living in my Dad’s house when he died. Dad wanted me to be able to continue living in the house, but now his executors are trying to sell it. Can I stop them?

Executors are generally entitled to sell any assets that were not specifically given away in the WILL. If you were not named as the beneficiary of the house in the WILL, the executors probably have the right to sell it. You may want to consider making an offer to purchase the house using your share of the estate. If you were living rent free in the house, you may be your Dad’s dependant and may be entitled to ask a court to let you stay in the house.

I am 65 and my new husband is 83. His kids think that I am a gold digger. How do I protect myself from his children when he dies?

You better be ready for a fight. Children who are upset at their parents subsequent marriage, and whose inheritance may be substantially diminished because of that marriage, will often attack the new spouse on as many fronts as they can. They might even attack the validity of the marriage itself.

You should be arming yourself with as much evidence as you can find to confirm that your husband knew what he was doing, including getting a mental capacity assessment, if possible. Documenting your life together is also a good idea. Pictures, cards and other tangible evidence of your relationship will help you.

Aside from receiving a copy of my sister’s WILL, I have not heard what’s happening with the estate. When is it appropriate for me to contact the executor to find out the status of the estate?

You have the right to contact the executor at any time. As a beneficiary, you are entitled to know about the status of the administration of the estate and your sister’s assets. However, you must be realistic in your expectations. As a rule of thumb, you would be acting reasonably if you asked for a status report every three months or so, unless there is a situation that clearly makes this estate a special case.

My sister, my brother and I are the three beneficiaries of my Mom’s Estate. I don’t need the money and I want my share to go to my sister, but not my brother. How can I do this?

One option is to “disclaim” or surrender” your share in the Estate. However, that will result in your share being divided equally between your sister and your brother. Another option would be to take your share and then give it to your sister. Before taking these steps you should obtain professional tax and legal advice.

Mom left burial instructions in her WILL that said that she wanted to be cremated. My brother is the executor and he refuses to cremate her. Can he do that?

Funeral or burial directions in a WILL are not binding on an Executor. Your Executor will have the final say on how to deal with Mom’s burial.

I am a WILL’s lawyer with the law firm Fish & Associates, 7951 Yonge Street, in Thornhill. If you wish to learn more about WILLs’ and Powers Of Attorney, you can visit my Website to watch my complimentary online seminar.

If you do not have a WILL and are not sure where to start, I offer a free WILL consultation. During this free consultation I can answer some of your WILL planning questions and concerns.

To arrange for a free WILL consultation appointment please call (905) 881-1500 or email or visit