My Wife’s Brother Never Claimed His Part Of Their Mother's Estate. What Do We Do Now?

Q. I am helping my wife manage her brother’s estate . While searching through his documents, I found all the paperwork we prepared for him to claim his mother’s life insurance (she died three years ago). We filled out all the paperwork for him while we were doing it for my wife. He even signed them, but just never mailed them in. Similarly, we also prepared all the paperwork for him to claim stock accounts that his mother was the custodian for. He never mailed any of those forms either. Could we submit those documents now, as is, so that the distributions are deposited into his savings account and become part of the estate? Or do we need to wait for the probate process to be completed and then my wife makes a claim as the personal representative? We live in New Brunswick. My brother-in-law had no spouse, no children or family other than his sister (my wife). He had no will . —Edward K.

FP Answers: Dear Edward, thanks for all the details. One missing item is whether your wife’s brother was the beneficiary of the life insurance policy or was he the estate executor for his mother. This makes a difference.

If the brother was his mother’s estate executor and did not complete all his obligations, then local procedure may require that a replacement estate trustee for his mother’s estate be appointed to close her estate. This assumes the insurance benefit is substantial and payable to her estate.

Your wife’s brother did not have a will or name an estate executor who could complete the administration of his mother’s estate. If the insurance proceeds were designated to your wife’s brother as the only beneficiary, they are not controlled by the mother’s will, at least not in Ontario, where I practice law.

You will require advice from a local lawyer to determine your wife’s entitlement to handle her brother’s affairs and to administer his estate. Under New Brunswick’s laws, your wife may be her brother’s sole beneficiary. The insurance company may only make substantial proceeds payable to the brother’s estate to limit their liability. If the insurance proceeds are payable to the brother’s estate, an estate bank account must be opened by his estate representative to handle the funds.

Without a court appointment, can anyone close the mother’s estate and distribute any funds according to the mother’s will? Was the life insurance designated to a particular beneficiary (your wife’s brother), or is it part of his mother’s estate residue? All the mother’s debts and liabilities are to be paid before beneficiaries receive their funds. This may include filing any outstanding tax returns. A final tax clearance certificate may be required to protect the executor from any income tax liability for unpaid taxes.

If your wife’s brother was a direct beneficiary of the policy, the insurance company will likely pay the benefit to his estate. Much will depend on the size of the benefit. If your brother-in-law did not have a will, does he have an estate that requires administration?

The insurance benefit, if it is large and payable to the brother’s estate, may require an estate certificate to collect this insurance. This may require your wife to apply in New Brunswick, where her brother last resided. This province’s intestacy rules would determine who can be named an estate administrator to handle his assets and pay debts.

Were the stocks the mother’s property? Or are they now part of her estate or the brother’s? Similar rules apply in the case of the insurance benefits. You should be guided by information received from the stock transfer agent and your mother’s will.

The transfer agent may first require delivery or replacement of the actual stock certificates if they cannot be located. Again, someone may need to be appointed as the brother’s estate representative without a will to handle the stock transfers if they may belong to either the brother’s or the mother’s estate.

Edward Olkovich is an Ontario lawyer at MrWills.com. He is certified by the Law Society of Ontario as a specialist in estates and trusts law. This information does not substitute for legal advice.

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