Financial Exploitation / Misappropriation of Assets
Choosing a Personal Representative (PR) you can trust to administer your estate takes careful consideration. While we like to believe our friends and family members have our best intentions at heart it is not unheard of for a Personal Representative to take advantage of their role to exploit and/or misappropriate estate assets. Examples of PR misappropriation or exploitation include:
- using their status to buy assets from the estate for less than fair market value;
- transferring estate assets (such as a deceased's car) from the estate into their own name;
- removing a deceased person's personal assets from the estate without the consent or knowledge of beneficiaries;
- utilizing estate funds to pay for personal expenses not related to the administration of the estate;
- concealment of estate assets from beneficiaries; or
- embezzlement of estate assets.
You should seek advice when choosing a PR. Are you appointing someone out of duty because they are your eldest child? Do they have the ability to take on the task? Do they want to do it? Contact us. We can help guide you.
Taking advantage of the elderly
Financial exploitation and misappropriation can also be found in situations where someone acting under the power of attorney is in charge of managing financial assets of a friend or family member. Often that person is elderly and lacks capacity due to age or dementia.
Examples of attorney misappropriation or exploitation may include:
- removing money from bank accounts;
- transferring bank accounts into joint names;
- an attorney facilitating the transfer or real property into their name;
- naming themselves as the beneficiary on life insurance policies or RRSPs; or
- selling property without the consent or knowledge of the elderly friend or family member.
What Can I Do as a Beneficiary?
Estates can take time to administer. There must be an accounting of the estate, and debts, if any, must be paid. In common law there is a rule known as the “executor’s year” that gives estate trustees, commonly known as the Personal Representative or Executor, 12 months to fulfil their duties before beneficiaries have a legal entitlement to demand payment. Depending on the complexity of the estate, it may only take several months before the matter is settled.
Remember too, that a Personal Representative is likely to be a family member who may still be grieving. It is also likely they are serving in the capacity for the first time and may not have the experience needed to administer an estate.
If you are a beneficiary, you can ask for a copy of the Last Will and Testimony and you also have the right to ask for progress reports. If you have suspicions that something is not right you can ask specific questions, such as what assets are worth and, if they are being sold off, what is the selling price.
It should be noted that the Personal Representative is not required to consult with beneficiaries or keep them apprised of each new development. However, if you have made a number of attempts to contact the PR and they have failed to provide information you can speak to the estate lawyer for help.
What if I Suspect Fraud?
As soon as you suspect something is amiss you should take action. Speak to the Personal Representative. If they refuse to divulge information, you can take the case to civil court where a judge can order the PR to give a full accounting or meet specific deadlines for administering the estate. Court can also remove someone from the job if they are abusing their role and appoint a successor.
Acting quickly is in your best interest and can cut down on the time you spend in court. It is especially important to seek help immediately if you suspect misappropriation.
Choose an Experienced Lawyer to Help You
If you suspect a personal representative has misappropriated or exploited assets of an estate or you believe an attorney is financially exploiting an elderly friend or family, contact Kantor LLP and one of our lawyers will provide you with information on your options.