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The Situation:

My best friend's mother (Grace) passed away on Monday. Grace told her sister Hope and her son that she had a will. We cannot locate it (at home, not filed with lawyer or the city).

We found investment papers stating her brother to be the beneficiary (2016). We found retirement papers stating 50/50 to her brother and her as beneficiaries (2017).

If there is no will to be found, how does the family proceed?

  • This is too heavy on case specifics, to the point of being a request for legal advice. There is a related question, though: what happens if there is some indication that a person intended a different disposition of property, compared to that of a much older will. However, beneficiary stuff may bypass a will. – user6726 Jan 31 '18 at 23:03
  • @user6726 Thank you. Everyone is just a bit lost since they can't find the supposedly created will. I didn't want to ask too many questions that may be considered opinion-based or better for the financial forum (ie: how does the funeral costs get taken care of if surviving members can't pay). – doctordonna Jan 31 '18 at 23:18
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    Your problem is not “opinion based” it’s “too broad” and “request for legal advice”. Break it up and leave out the personal info. 1. What happens if someone dies without a will 2. What happens if a will that is believed to exist can’t be found 3. What happens if an old will names an ex-spouse as a beneficiary – Dale M Jan 31 '18 at 23:29
  • @DaleM Thank you. Right now the family is more concerned with #2 so I'll stick with that. – doctordonna Jan 31 '18 at 23:37
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With respect to assets with a beneficiary designation, you contact the company involved and ask what paperwork they need to make a distribution happen. Usually, it is a death certificate and a company specific form that establishes the domicile of the decedent and the identity of the claimant. Often these forms need a "guaranteed signature" which is a bank backed alternative to a notarization.

If there is any real estate or there are significant assets, an intestate probate estate is opened and the next of kin with priority under the relevant statute is appointed as executor and distributes the remaining property in accordance with the laws of intestate succession.

If there is only tangible personal property and a small amount of financial assets that have no beneficiary or joint owner, it is sometimes possible to collect and distribute those assets by affidavit or in a streamlined small estates procedure.

Either of the latter two situations really call for a lawyer to be involved.

  • Thank you. The family will be glad to have some new information to move forward. – doctordonna Feb 1 '18 at 0:42
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Estate law in Canada is a provincial matter so we really need to know what province this is happening in.

If you are in Ontario, the law is the same as in New Jersey, USA and Levitz v. Hillel Lodge Long Term Care Foundation is the persuasive precedent. The (rebuttable) presumption is that there is no will i.e. the deceased died intestate. To overcome the presumption, a plaintiff needs to prove:

  • the will was duly executed,
  • The deceased had it in her possession up to the date of her death,
  • The contents of the will, and
  • Rebut the legal presumption the will was destroyed by producing enough evidence to prove the testator didn’t intend to destroy or revoke the will.

All provinces have laws that deal with intestacy. Ontario's are summarized here.

  • I updated to include Ontario. This is a good step in the right direction for the family to follow up with a lawyer. Thank you. – doctordonna Feb 1 '18 at 0:41

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