Toronto Estate Law Blog : Toronto Estate Lawyer : Hull & Hull Law Firm : Trust Mediation and Succession Planning : Serving Ontario, Ottawa, Mississauga, Hamilton

• Email This
• Print
• Comments (1)
• Trackbacks
• Share Link

Listen to Will Challenge Litigation - Part 1

This week on Hull and Estates, Ian and Suzana kick off their new video format.This podcast is an audio version of the video podcast that is available on YouTube here: http://www.youtube.com/watch?v=udEcTpLFIkk

This week's episode also marks the beginning of a new segment that tackles Will Challenge Litigation step-by-step.

Comments? Send us an email at hullandhull@gmail.com, call us on the comment line at 206-457-1985, or leave us a comment on the Hull on Estate and Succession Planning blog.

Will Challenge Litigation - Part I - Hull on Estate and Succession Planning

Posted on August 19, 2008 by Hull & Hull LLP

Welcome to Hull on Estate and Succession Planning, a series of podcasts hosted by Ian Hull and Suzana Popovic-Montag, that will provide information and insights into estate planning in Canada. From the offices of Hull Estate Mediation in Toronto, here are Ian and Suzana.

Suzana Popovic-Montag: Hi, and welcome to Hull on Estate and Succession Planning. You’re listening to Episode #127 of our podcast on Tuesday, August 26^th, 2008.

Ian Hull:  Hi, Suzana.

Suzana Popovic-Montag: Hi there, Ian. How are you?

Ian Hull: I’m great.

Suzana Popovic-Montag: That’s good.

Ian Hull: I’m very excited about our new format. This is our first video podcast. Now for those of you who enjoy listening to us on the audio, that’s still the same. iTunes is the same, nothing’s changed but we’re allowing to engage a little differently and a little more comprehensively. We’ve got some YouTube feeds that we want to encourage you to go to. Links to all of the YouTube feeds are on hullandhull.com and please feel free to give us any phone-in feedback at 206-457-1985.

Suzana Popovic-Montag: Or you can feel free to visit our webpage at hullandhull on the web and to leave us any comments or questions, concerns you might have.  And please, let us know what you think about this new format of ours as well. 

Ian Hull: We’re really excited about this and as I say, we’re going to have this entirely seamless so it won’t really matter how you’re coming to us, whether you’re video or audio. What we thought we’d like to do is step back a little bit from, we’ve had a great series on administering an estate and how to function as an executor.  Now we’re going to step back and go into our own mini-series on challenging Wills. And what we thought we’d do is we’d start off by looking at this from the chair of the client, so to speak. When someone comes to see us, our practice is trust, estate and capacity litigation. That’s our sweet spot. That’s where we’re doing most of our day-to-day work. So we’re dealing with Will challenges on a regular basis and it’s a big, big part of our practice. So we thought we’d talk about how and what you can expect in a Will challenge. So first of all, Suzana, what are we talking about when we say Will challenge?

Suzana Popovic-Montag: Well, Ian, what we’re talking about in this situation is when you’ve got someone who’s typically the client is someone who’s been cut out of a Will.  And so they’re coming to us because they say, you know, during mom or dad’s lifetime, I had expected that I’d be in the Will, they said I’d be provided for and suddenly they’ve passed away and I’ve discovered I’m getting nothing out of this estate, or, I’m getting less than I had expected out of this estate. And these situations are the ones that we talk about typically in these scenarios.

Ian Hull: So, they’ve either got cut out of the Will or you’re acting for someone defending the Will.  So that’s sort of two perspectives that come into play. Now for a little shameless self-promotion, we’ve got our book “Advising Families on Succession Planning: The High Price of Not Talking”, and this book, which you can get through our webpage, is really user friendly, explaining some of the core concepts, so there’s a good benchmark there. 

But today we’re also adding to our podcast series on the video side of course, a little bit of new technology at smarttech.com is the Smart Board.  And we’ve got this at Hull and Hull, and it’s a terrific tool, highly recommended and we’re going to be using it today on the video feed. 

So, we’re just stepping back now starting with the Will challenge itself. The first thing we’re going to do when we get to see a client who comes in and says, I’m terribly angry about the fact that I’m not in my dad’s Will or, I’m terribly angry that my sister is challenging my dad’s Will, his wishes, that’s what he wanted, I’m here to defend it.  Hull and Hull, what can you do to make that happen? The first thing we’re going to say to them is okay, take a deep breath, let’s look at the lay of the land.  And an important part of the lay of the land and a little homework you can do to save yourself some time and energy when you’re coming to see your lawyer about this if you’re looking into this kind of a problem, is make sure you know who’s involved. And we call it the family tree. And our first question is, who’s mom? Okay, we’ve got Betty and we’ve got Tom, the dad. And maybe there’s a second marriage over here. Tom, after Betty predeceased Tom, Tom ended up marrying Jane and they had three kids as well. And we’ll want to walk through that. And then of course, Betty and Tom from their first marriage, how many kids did they have? And they had one, two and three kids here, and then grandkids. 

Now we don’t want to underestimate the importance of making sure that you’ve got the lay of the land straight right from the beginning because if we don’t know that at the start, it creates all sorts of other problems at the other end of the law suit. And interestingly enough, Suzana, why is it that we’re going down to this level as well? When I say this level, the grandkids, why do I even care about that?

Suzana Popovic-Montag: Well the reason for that is because we want to be put in a position where we know everyone who’s involved. And so when you get to the grandkids, they’re typically minors, people who are under the age of majority in whatever jurisdiction you’re actually from. And so in these situations, it’s particularly important to know their dates of birth so that we can say how old they are in addition to who they are in terms of ultimately determining everyone who has a financial interest in the estate. And Ian, you can explain a little bit about what a financial interest means in these circumstances.

Ian Hull: For sure. And what we’re going to get to on our next page, we’re going to talk about is the background information to help us figure out who’s got financial interest. Because financial interest is one of the most significant questions. It’s a legal question. Who’s got a look in here? Who has the right to be involved in this law suit? Who has jurisdiction to be involved? I mean you can’t have the Prime Minister of Canada challenging every Will. You have to have some sort of direct link. And that direct link, with a lot of people they misunderstand and they don’t take advantage of some of the different angles and some of the nuances. So we sit down and we say, as we say, we get the family tree straight and then we sit down and say who else could have a financial interest? And we talked about a second ago, was this idea of a second marriage. Obviously that’s a financial interest that the second wife would have. But maybe not so obvious would be a girlfriend who may or may not have been around full-time, maybe is a girlfriend, maybe isn’t, maybe is a spouse, maybe isn’t. So you start to really drill down and work through that whole question of who should be at the table. Because we started off earlier talking about the family tree because if you don’t have everyone at the table from the get-go in these law suits, you create tremendous problems at the other end or as you work through it.

Suzana Popovic-Montag: And the reality is that not only family members are provided for in Wills. There may be other individuals who have been named as beneficiaries of an estate who are not family members and so we want to get that information from our clients so that they, too, can be at this table, as Ian says, for the purposes of dealing with the actual Will challenge.

Ian Hull: So our second screen that we’ve got up next is, it’s a blank screen that I’ve written a little bit on, but it’s Background. And you’d be surprised at how important a background is. And often when we see clients we want them to really sort of download some of the history, because the history will help us play out what some of the legal issues that are going to be involved. We’re going to talk about, and we probably won’t get into it today, but some of the core legal issues. But we want to focus on the background. We do actually want to know about the family and about the person who’s passed away because that will help us crystallize where we start, what direction we take in the law suit. 

So, we’ve got a couple of pages on Purpose on our Smart Board here, set aside for background information. After that though, after we’ve gone through the background, the next core step that we want to really make sure when we’re setting our table, we’ve got our knives and forks out, we’re getting our plates out now. We need to know what Wills are there. And when we say Wills, what are we talking about, Suzana?

Suzana Popovic-Montag: Well, we’re talking about in every jurisdiction there’s a different definition of what a Will is, but for the most part, we’re talking about someone who has put their testamentary wishes, their dying wishes in writing somehow on paper. And so the idea is to determine what is a valid testamentary document, what is a valid Will, so that we can determine if, in fact, the Will that’s brought to us is being challenged and we’re successful in that challenge, for instance, what happens to the estate? Then typically we’re looking at a prior Will, so we want to determine as much as possible what the Wills are that are out there, who’s provided for in each particular Will, because again, those particular individuals have a financial interest in the estate.  And then we take it to the next level and determine whether or not those documents are actually valid testamentary documents.

Ian Hull: Alright. So we’ve got a good sense that what we’ve got to do here and what our first step here is we’re going to want to do is really focus on testamentary documents and Wills and what we do with them because that’s the starting point of the whole law suit. 

Alright, so I think we’ve got a good introduction to the concept. As we say, this is going to be a mini-series on Will challenge and what we can expect and not expect when you get involved. So I want to thank Suzana because this is our first video feed that we’re trying out of Hull on Estate and Succession Planning. And please, feel free to e-mail us at hullandhull@gmail.com.

Suzana Popovic-Montag: Or of course feel free to call us at 206-457-1985.

Ian Hull: Thanks very much, Suzana.

Suzana Popovic-Montag: Thanks Ian.

You’ve been listening to Hull on Estate and Succession Planning with Ian Hull and Suzana Popovic-Montag. The podcast you have been listening to has been provided as an information service. It is a summary of current legal issues in estates and estate planning. It is not legal advice and you are reminded to always talk with a legal professional regarding your specific circumstances.

To listen to other Hull On podcasts, or to leave any questions or comments, please visit our website at hullestatemediation.com.

/mem

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Listen to Calculating Compensation

This week, Ian and Suzana discuss the number of emails they received last week about cross-reference analysis and compensation. Ian references 5 cases that are important to this subject:

1. Logan vs Laing - Ontario Court of Appeal
2. Toronto Railway Trust
3. Re. Knoch (1982)
4. George William Trust
5. Re. Jeffrey

They explain and continue talking about calculating compensation and how to audit the claim for compensation.

Comments? Send us an email at hullandhull@gmail.com, call us on the comment line at 206-457-1985, or leave us a comment on the Hull on Estate and Succession Planning blog.

Calculating Compensation - Hull on Estate and Succession Planning Podcast #124

Posted on August 5, 2008 by Hull & Hull LLP

Suzana Popovic-Montag: Hi, and welcome to Hull on Estate and Succession Planning. You’re listening to Episode #124 of our podcast on Tuesday, August 5^th, 2008.

Welcome to Hull on Estate and Succession Planning, a series of podcasts hosted by Ian Hull and Suzana Popovic-Montag, that will provide information and insights into estate planning in Canada. From the offices of Hull Estate Mediation in Toronto, Ontario, Canada, here are Ian and Suzana.

Suzana Popovic-Montag: Hi there Ian, how are you?

Ian Hull: I’m great Suzana, how are you doing today?

Suzana Popovic-Montag: I’m great thank you.

Ian Hull: Super.   Well listen, please, feel free to give us an e-mail at hullandhull@gmail.com.

Suzana Popovic-Montag: Or feel free to give us a call at our direct line, 206-457-1985.

Ian Hull: Alright Suzana, well I think I managed certainly to confuse some people on our last podcast because I had three e-mails come in talking about what the heck I was getting at in this cross-referencing and maybe I got a little case law heavy in the last podcast. But we’re going to make sure that the show notes will reflect the cases that we’re talking about. But there really are only four cases, and it’s the Re. Laing decision. There’s a case called Toronto Railway Trust that we’re going to talk about. There’s a case called Re. Knoch and there’s a case called George William Trust. Those four cases, the references are in the show notes. But the important thing I think was, and we’re not going to rehash on pre-taking because that part, all three e-mails seemed to be quite clear that that wasn’t the problem. But there was some confusion about what we’re getting at with this whole Re. Laing analysis. And I don’t necessarily recommend to have to read the case but it is a phenomenal decision because what it did was, it gave us what we now identify as the cross-check. The balancing act between the five factors in the Toronto Railway Trust case versus the, you know, we call it a tariff, you know, whatever you want to call it. It’s the same as what real estate agents charge. You get the commission. It’s probably the nicest way of putting it. There is a commission that you get when you are an executor, that’s a general rule and that’s generally 5%. We talked about the plus or minuses and all of that. 

So what Re. Laing said to us was first of all, take the commission seriously and don’t come to the Courts looking for us to adjust the commission unless you have got a good reason, it seems to me. And what they did was they relied on…sorry I did say four cases; there is a fifth case because the cornerstone part of the whole decision was Re. Jeffrey and that was a decision of Mr. Justice Killeen. Again, coming from the great town of London, Ontario, just like the George William Trust, we have some wonderful judges down there. And Justice Killeen was the guy that came out with this whole cross-check, cross-reference analysis, and brought certainty to the process of how we calculate compensation at a level that, quite frankly, for 50 years, has been unmatched because when I first started practicing law, the biggest area of contention with this type of passing of accounts issue was passing on compensation, and fighting over compensation. Because of Re. Laing in part, most of the time you’re not into those battles anymore because of the clear message that Re. Laing, Re. Jeffrey says and that is here is your formula and by the way, don’t mess with the commission unless you’ve got a good reason. That seems to be generally the approach that the Courts are taking. Now obviously that’s a general statement. Every case is different and the Re. Laing decision allows us to look at that difference because it talks about these five factors: the time, the skill, the care, the type of assets that are under administration, how much you are administering. All of those real life practical factors get dovetailed into and looked at against this commission. And is the commission excessive looking at those factors?

An easy example is, and it was a case that we see a lot of the time and that is, someone dies, they’ve got $20,000 in GIC, they’ve got $200,000 in a RIF and they’ve got a checking account of $16.00. They die, you go to administer that estate, you look at the size of the estate. You look at how hard it was. Well, the GIC and the RIF are, you know, pretty easy administration in terms of that. But on the face of it, you might say the commission is too high. But what we see from time to time is, here’s a great thing you throw into the hopper on that example. When you just really think that you should reduce the commission because it looks like a straightforward case, you throw in the analysis of what if this person did file tax returns for 10 years? Just because, you know, they got old and they just wanted to buck the system. Well, you throw that little factor in, all of a sudden the commission looks a little modest because you’re going to have to retain counsel, retain the tax advisors and so on to solve that problem. On the face of what looks like a straightforward administration, maybe you should reduce the commission, like you might do in a house sale situation where someone will come around to the agent and they’ll say look, I’ll do it for 1% less than my next-door competitor. But you’ve got to look at, the Courts have said, you’ve just got to look at the situation case by case.

Suzana Popovic-Montag: And it really is a matter of big picturing, Ian, it seems to me because as you say, it could, on the face of it, look like a simple thing but once you dig deeper into the administration, there is all of these complexities that might not be evident on the face of a set of accounts. So it helps with, as we’ve talked about in the past, keeping detailed records so that when you have to justify the work that has been done, you can point to the proof of the fact that it’s been done and to what extent.

Ian Hull: Okay, so now let’s just talk about, now that we’ve figured out the formula on how to calculate compensation, let’s just make sort of a mini checklist on what we also would look at again to audit properly the claim for compensation. And that is what this is all about. We’re auditing the claim and we’re determining whether or not the claim for compensation or the commission sought is justified in the circumstances. So we’ve talked about the big picture, the formula, the cross-check formula.

Now let’s just go through a couple of other items that you might want to add to your checklist that are easy hits or easy issues to consider when auditing the compensation.

Suzana Popovic-Montag: And the quickest one that comes to mind, of course, is what we’ve talked about in the past, is just like very large receipts or disbursements that are paid during the course of an administration. For example, that big RIF account of $200,000; other large bank accounts or insurance policy proceeds. Those kinds of things that are ear-marked and big sums could be ones to which you might argue a lesser percentage or commission should be applied.

Ian Hull: And another example would be are there actual deductions, are there proper deductions for issues that, items that just shouldn’t be compensated on. For example, one might be when you pay yourself a gift. So the executor gets a gift under the Will. That you’re not allowed to put into the mix to calculate compensation.

Suzana Popovic-Montag: Another common deduction that we see, a proper deduction is when there is a transfer between bank accounts. Trustees will occasionally take from one bank account, put into another, the estate bank account for instance, and then pay things from there. So those kinds of transfers are not normally compensable.

Ian Hull: Another area is, you know, you want to look at net losses on investments. It’s another area to consider which are not typically compensable.

Suzana Popovic-Montag: And another flashpoint that we see a lot of is when there are legal or accounting fees that are paid to firms to which the trustee is a member of.   So when the trustee is acting and looking for compensation pursuant to the tariffs and guidelines that we’ve talked about and also looking in addition for legal fees and accounting fees, then those kinds of things need to be looked at carefully.

Ian Hull: A classic deduction that can be made is looking at the question of care and management. And the question of care and management can be a big ticket item. When we talked about this formula, if you look at the formula and when you calculate care and management, you’re entitled to, if compensation and a commission should apply here, 2/5ths of 1% on the annual value. So if you do that over a five year period, that number can add up, regardless of the size of the estate. That’s a significant commission so to speak that you can charge. Now one of the easy questions that you could ask yourself when you look at this, and we always start by looking at our Will or trust that we’re looking at before we start to audit these accounts, is, is this a proper case for care and management? Or is it an immediately distributable estate? And I mean, immediately distributable that on death, within the year of death, you’re supposed to generally be able to distribute the estate with only a holdback for liabilities such as taxes. And if it is an immediately distributable estate, unless you have a pretty good reason, the Courts get a little grumpy about paying yourself care and management in those situations.

Alright, so really from our standpoint, the last podcast we’re going to do on this whole accounting question before we go back into some more administration issues, is going to be talking about the delineation between executor’s compensation and professional work of a lawyer or an accountant. And that is worth, I think, at least one podcast and we’ll fit it into one in our next one because that distinction is an important deduction. It can actually turn out to be a significant deduction on compensation so therefore an important audit item that you want to make sure you’ve got a handle on but one that there is no hard and fast rules on. And so we want to spend some time on our next podcast talking about deductions for compensation that arise out of the delineation between the role of executor and the role of the professional, for example, the lawyer or the accountant.

Suzana Popovic-Montag: Well, that’s great Ian. Thanks very much. I just want to remind our listeners to feel free to give us a call with any comments or questions they might have at 206-457-1985.

Ian Hull: And e-mail, of course. We enjoy receiving them and we’ve had a good barrage of them over the summer, hullandhull@gmail.com. And we welcome your comments, questions or thoughts.

Suzana Popovic-Montag: Thanks very much Ian.

Ian Hull: Thanks Suzana.

You’ve been listening to Hull on Estate and Succession Planning with Ian Hull and Suzana Popovic-Montag. The podcast you have been listening to has been provided as an information service. It is a summary of current legal issues in estates and estate planning. It is not legal advice and you are reminded to always talk with a legal professional regarding your specific circumstances.

To listen to other Hull On podcasts, or to leave a question or comment, please visit our website at www.hullestatemediation.com.

Our theme music is UpTempo14 by Gary and is courtesy of the Podsafe Music Network.

/mem

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Listen to Valuations and Appraisals

Ian celebrates the 100th episode of Hull on Estate and Succession Planning.

He discusses the question of valuations and appraisals and how these affect estate mediation.

Comments? Drop us a line at 206-457-1985 or send us an email at hullandhull@gmail.com.

Valuations and Appraisals - Hull on Estate and Succession Planning Podcast #100

Posted on February 19^th, 2008 by Hull & Hull LLP

Ian Hull:  Hi, and welcome to Hull on Estate and Succession Planning.  You’re listening to Episode #100 on Tuesday, February 19^th, 2008.

Welcome to Hull on Estate and Succession Planning, a series of podcasts hosted by

Ian Hull and Suzana Popovic-Montag, that will provide information and insights into estate planning in Canada, from the offices of Hull Estate Mediation in Toronto, Ontario, Canada.  Here are Ian and Suzana.

Ian Hull: Hi and welcome to another episode of Hull on Estate and Succession Planning. I’m Ian Hull and today unfortunately I am doing this alone because Suzana Popovic-Montag is away.  So I’m going to carry this solo and I want to remind you that if you want to be heard on our podcast, you can participate in our discussion by leaving a comment.  Please feel free to call 206-457-1985.  Now the number is also in the show notes and our webpage at: hullandhull.com. It’s an easy source to link to our blog and e-mail address for our podcast is hullandhull@gmail.com.

Today I wanted to talk about a couple of things. First and foremost with great pride, I can announce we’re at 100. Those of you who listen to the Canadian Podcast Buffet would know that this means that we’re in the Century Club which we intend to advise our good friends at the Canadian Podcast Buffet about our status at hitting 100. This has been quite a ride. Suzana and I began this challenge in March of 2005 and we’re here today having hit #100. As I say, I’m here alone but Suzana is here in spirit.

So today the issue I wanted to talk about is one that really, I think, underlies many, many of the problems that we face in an estate administration and that is, the question of valuations. Now this isn’t just going to be sort of a comment or discussion about valuations, about very big properties and very expensive properties. This is about valuations globally and how it affects an estate administration.

The first thing that somewhat comes to mind with valuations is real estate. And one of the things that an executor, once you’re appointed executor is put to task right away at, is to deal with real estate typically. And most estate administrations you’ve got the house or a cottage or something like that. And the valuation issue becomes a primary concern. Let me just pause at this moment on the real estate issue and let’s just save for the comment that I want to talk about right is… let’s say classic residential property. When you’re an executor, you really need to look around, check out the lay of the land and see who your beneficiaries are. Often you’ll have at the table people who may want to buy the property and there may be deals that you want to make directly with the beneficiaries to avoid commissions and so on. But in almost any event, there is the need to determine what the value of the residential property is. And there’s two central approaches. One is to get the valuation done by what I call a drive-by appraisal. And that’s getting a reputable agent or getting a few reputable agents, two or three, to give you a drive-by appraisal of the property. You need that at minimum for probate fee purposes in the sense that if you’re going to be paying the probate tax in Ontario. But just to get an understanding of the value of the assets you want to, I think, I tell my clients to consider first of all is the drive-by. Within the real estate agent gambit is also the possibility that they will go and just do a full inspection and give you a valuation on that basis. So it’s more than a drive-by. But it’s done by a real estate agent. And it’s essentially done on testing the market and so on, in that approach.

The other important delineation is if you want to really lock down the value of the property is to get a certified appraisal, I’ll call it. In Canada, there’s a certain association of certified appraisers. They have to be qualified and so forth. And you get what is essentially a more fulsome report on the appraisal value. That appraisal though, is typically obtained in situations where there is going to be some dispute as to the value. Maybe it’s the value from the taxing authority, they want to know what the value is for capital gains purposes. Or maybe it’s the value determination within the beneficiaries. More often than naught, the drive-by or walk-through appraisal through an agent is enough for an estate administration. But I always tell my clients to consider the possibility of doing a formal appraisal. And I think, I mean, two things come from this. One is, is of course the obvious is that when you get a drive-by or you get an agent to do the appraisal, it costs some money but it’s typically something in the modest range. I mean, my experience is that somewhere around… sometimes they’ll do it for free, sometimes they’ll do it anywhere up to fifteen hundred dollars. To do a proper, certified appraisal though, you’re looking at anywhere between two and five thousand dollars depending on the residential property. Now you get more of a seal of approval, so to speak, a more qualified opinion with the more expensive, but it’s a totally get-what-you-pay-for situation.

So that’s something, I think, that you’ll want to really consider is, is that whether or not, if you have real estate, you want to proceed to get the informal appraisal or proceed to get the more formal appraisal through the certified process, through a certified appraiser. I can think of a thousand reasons to do one and a thousand reasons to do the other and so to guess at it right now doesn’t make sense. I just think that what I will say though is, is that typically people stay within the ambit of working with agents to get it and don’t go to the full level of the appraisal.

I just want to talk a minute about commercial properties. Now in my example I think of, a nice woman dies, she dies with a cottage that needs to be appraised for CRA purposes because they want to know what the capital gain is, they want to appraise the house because the house is to be sold, the proceeds are to be split between the two children. And thirdly, they own a little retail property around the corner that they bought 50 years ago and it’s for a convenience store at this point, with a little tenant on the top of it. I mean that kind of scenario. And really, I mean, starting with that, when you get into a commercial property, then I tell my clients we’ve got to really seriously consider getting the certified appraisal.

Now like anything though, I make sure that we’re getting the appraisal from experts. People who know the area, the property, it’s the same as residential. You don’t want to get someone to give you an appraisal that works out of Whitby, when their specialty is Whitby and the property is in Saskatoon. But the same thing goes with commercial properties. There are specialties within their different framework of commercial properties that you want to look to, to get the right person to get involved with the appraisal process.

Now from a government taxing standpoint, CRA, the appraisal on a commercial property is very important and it also can be very important from the standpoint of a disposition ultimately to the beneficiaries. So we’ve got this appraisal process and I want to take it to another level in a sense, another tier of appraisal problems and that is, is that whether or not it’s just a Mac’s Milk and a tenant on top property or it is a series of buildings or it is something more substantial, different buildings and some vacant land and a whole mixture of residential and commercial properties. Obviously you need to have them carefully appraised just for the taxing authorities’ standpoint alone. But it seems to me anyway, you want to take a look at the properties and determine what you will ultimately want to do with these properties. If, for example, some are going to be split up amongst the families, each property given to one child or something like that, what we call a direct gift of the properties through the Will, then that may affect how you’re going to approach the appraisal. If they’re going to be sold, that may affect your approach to the appraisal.

I notice now in my practice many more times what’s happening is, is that you’ve got situations where you’ve got say, six or seven buildings, some bigger than others, a portfolio of a few million dollars in real estate and you may want to unload them all collectively to a group. And there are obviously people who are interested in investing in collections of properties. I know Suzana and I have dealt with over the years situations where there’s such a large collection of properties that you can even find that some of the pension funds and other very big investors are interested in getting the real estate properties into their portfolio. So what’s important, I think, is to look at the end game, determine what kind of property we’re dealing with. Are we dealing with residential only? Are we dealing with a mix? Are we dealing with small commercial property? Or are we dealing with larger or middle-sized commercial properties? Seek out the appropriate advisors and where I say that is, is that I typically say to my clients, “Look, go to…for a commercial property situation where you’ve got multiple commercial properties…go to two or three of the big brokers, get some analysis done by them (a) on the valuation side but (b) on what they think they’re going to do to market these properties to get them sold. And they’ll often put a bit of a pitch together, so to speak, and go to the executors with some sort of framework as to how they think they can put the properties out on the market and ultimately sell them.

So it comes down to a real question of due diligence and, I think, anyway from my perspective, you can never spend too much time getting the valuations organized because they can be a tremendous source of litigation at the end of the day if you’re not careful.

Alright, well that’s just some thoughts on valuations. There’s many more issues that we can talk about in Episode #101 when Suzana gets back, so I will save that for her. As I say, it has been a great thrill and an honor and a pleasure to be able to work with Suzana on these 100 podcasts. I’m looking forward to another 100 podcasts and I know that if we combine these plus all the Hull on Estates podcasts that we’ve done over the years, we’re well over 100, but today does mark an important and a bit of a monumental day in my podcasting career, only sad to be doing this alone.

Alright, so thanks again for joining us and this brings us to the end of this week’s discussion. Thanks for listening to me today. We look forward to hearing from you and again, our email is at hullandhull@gmail.com or our comment line 206-457-1985. I’m Ian Hull and until next week, so long.

You’ve been listening to Hull on Estate and Succession Planning with Ian Hull and Suzana Popovic-Montag.  The podcast you have been listening to has been provided as an information service.  It is a summary of current legal issues in estates and estate planning.  It is not legal advice and you are reminded to always talk with a legal professional regarding your specific circumstances.

To listen to other Hull On podcasts, or to leave a question or comment, please visit our website at www.hullestatemediation.com.

Our theme music is UpTempo14 by Gary and is courtesy of the Podsafe Music Network.

/mem

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Listen to Pre-probate Checklist

This week on Hull on Estates, Ian and Suzana discuss last week's Ontario Bar Association Conference (featuring Clare Burns and Jordin Atin as speakers).

They then wrap up their ongoing discussion about some useful steps to remember when administering an estate.

If you'd like to leave a comment, call us on our comment line at 206-457-1985 or leave us an email at hullandhull@gmail.com or you can visit our blog at estatelaw.hullandhull.com/.

Pre-probate Checklist - Hull on Estate and Succession Planning Podcast #99

Posted on February 12^th, 2008 by Hull & Hull LLP

Suzana Popovic-Montag: Hi, and welcome to Hull on Estate and Succession Planning. You’re listening to Episode #99 of our podcast on Tuesday, February 12^th, 2008.

Welcome to Hull on Estate and Succession Planning, a series of podcasts hosted by

Ian Hull and Suzana Popovic-Montag, that will provide information and insights into estate planning in Canada, from the offices of Hull Estate Mediation in Toronto, Ontario, Canada. Here are Ian and Suzana.

Suzana Popovic-Montag: Hi and welcome to another episode of Hull on Estate and Succession Planning. I’m Suzana Popovic-Montag.

Ian Hull: And I’m Ian Hull. If you want to be heard on our podcast, you can participate with our discussion by calling and leaving a comment on our call-in line. This is number 206-457-1985.

Suzana Popovic-Montag: The number is in the show notes along with our e-mail address if you’d like to send us a message by e-mail at hullandhull@gmail.com. Or, of course, you can visit us at our blog at estatelaw.hullandhull.com.

Ian Hull: Alright Suzana. Well, you know, before we get into our topic today, I wanted to just start with a couple of quick comments. We had an interesting week this week. We were at…there was one of the big conferences, the Estates Conference of the Ontario Bar Association, the Institute. A couple of great speakers, Clare Burns spoke though, and Jordan Atin, our colleague, spoke in the morning on two, what I thought were fantastic topics and just great speeches. Clare talked about an interesting comment that she had on cases that are coming out and I thought it was interesting because we’ll talk a little bit about this in the context of estate administration. And that is, what happens in this new reproductive world that we live in and when you have babies born through artificial insemination and so forth, you create an interesting estate question.  And that is, if someone doesn’t have a Will and a baby has been born through circumstances of artificial insemination, you may have parents that aren’t at the table, so to speak, but you may have issues of distribution that get affected by virtue of the fact that you have a father and a child and the father isn’t around to follow through the chain of command, so to speak.  And, for example, in a situation where there’s an intestacy and a child dies and has no siblings, you go to brothers and sisters first.  But then you go to parents.  And the father may still be alive. For example, say the child is 35 years of age. He was born as a result of artificial insemination through a Sperm Bank and the mother never knew the father, never had anything to do with the father. Well, interesting question was lifted onto the table by Clare Burns, is that are there estate administration issues that come from this?

And I think, really, the point she was making that I thought was so telling was, is that we really are moving into a new age of who are parents and who are not parents and who could take in an estate and who may not take in an estate. And I just thought it was a fascinating discussion.

That was followed by a great discussion by Jordan Atin, who talked about family war in his book The Family War. You and I have talked about it many times and he had a really wonderful speech, great dialogue about what to watch out for and what to do to help avoid the family war. So that was good fun.  And then Jordan, that week as well, went on a show called Strictly Legal, a show with Michael Cochrane, a great friend of ours and a colleague. It’s on Business News Network. I had been on it two weeks earlier talking about estate planning and estate administration issues. So it’s been a good week, and a lot of fun. Lots of stuff going on.

Suzana Popovic-Montag: That sounds like a really interesting discussion, certainly with the Children’s Lawyer - that’s Clare Burns for those who may not be aware that she actually represents the Office here in Ontario, the government office responsible for minor and unborn children. So it’s interesting to hear how these issues arise in practice and I’m sure Clare’s got lots of stories that she could share with us.

Ian Hull: So let’s turn back to our discussion about administering an estate and talk about some more of the practical things that we want to consider and we want to do in this stage where we haven’t got probate, but we’ve got lots of work to do. And we roll up the sleeves a little bit. We talked about in our last podcast things like the safety deposit box step. And it’s interesting; I’m an executor in an estate just recently.  And I, too, went to the bank and I went and emptied the safety deposit box. Went through the whole process of that and it was sort of an interesting experience in the sense that, you know, you’ve got to roll your sleeves up and do these things to really believe it. But the fascinating thing I sort of took from going to the safety deposit box was that both banks I went to…we were clearing out the bank accounts and clearing out the safety deposit box…were so nice. And I go in there thinking, “geez, I’m taking all their business away from them, and I’m closing the accounts because the person’s died and we’re about to distribute to the beneficiaries”. And the staff and the system that they had set up to deal with me, to go through the box, close the account, they had a special representative to deal with me and so on… they were both - one was a credit union and the other was a bank.  But I thought it was interesting because I haven’t done one of those for a couple years now and just, you realize that the financial institutions are becoming aware of the importance of the transition. And what that process left for me was a good feeling about those two banks and I thought, “geez, you know, if I had someone to recommend or I had an estate or someone to deal with, the personal touch that they put into that process was a good way to leave some goodwill on the table to those who are living”. And I thought it was an interesting marketing point that I hadn’t realized that the banks were so attune to. And I just highly recommend it. And in this case, it was the Bank of Montreal. We have no ads from them in our podcast, but I will admit that was the case.

Suzana Popovic-Montag: Why do I have a feeling, Ian, that you didn’t necessarily tell them you were a lawyer?

Ian Hull: Oh, no, I did, they knew.

Suzana Popovic-Montag: Oh did you?

Ian Hull: Yeah. Yeah, oh yeah…they weren’t--

Suzana Popovic-Montag: That’s even better!

Ian Hull: Yeah, that’s so true, you know.  I thought that too because, but they…oh yeah, they knew I was a lawyer. I had wrote them before to set up things and stuff and so they knew I was coming.

Suzana Popovic-Montag: Way to go, Bank of Montreal.

Ian Hull: Yeah. So it’s funny to see… but it was a good point because the financial institutions are picking up on the fact that if you provide good service in this area you:

1. You’ll get some business back, no doubt; but
2. It’s not expensive service and it’s something that many, many people are going to need in the future.

Let’s talk on another area, about dealing with the banks and the transfer agents and so on in the estate administration and some of the first steps we want to take with them. And as you say, they knew I was a lawyer because I wrote them with some introductory letters and so on to sort of warn them I was coming.

Suzana Popovic-Montag: And I imagine that, as part of that introductory process, people will also write to the registered retirement plans that they’re aware of, to the insurance companies advising of the fact that the deceased has passed away and trying to get confirmation or details of the assets or the debts. Possibly to obtain any refunds that might be payable under any other of the assets owned by the deceased.

Ian Hull: That’s right.  And, you know, I make sure that you do follow a checklist pretty carefully on who you have to write and what you have to do. My own personal experience was where, in my own family circumstances, where I saw it too is that when someone transfers into a Power of Attorney status, the same sorts of things have to be undertaken. You have to…well you want to anyway…put together a pretty comprehensive checklist to follow through. You know, a letter to the bank with a copy of the Power of Attorney, or in the case of someone passing away, with a notary copy of the Will and so on. As I say, the transfer agents and you know, former employers, the OAS, CPP, that’s the Old Age Security people and the Canada Pension people as well. For sure, those are other people you want to write to in this transfer-over process.

Suzana Popovic-Montag: And if we have any information about annuities, mortgages and receivables, those kinds of things that were owned by the deceased, we’d want to write and advise them as well.

Ian Hull: I have an interesting case that I dealt with a couple years ago where we were administrating the estate.  And about two-thirds through the administration, one of the executor said, “you know, I’m pretty sure there was an estate down in California that the deceased was fighting about or dealing with”.  And sure enough, we made some inquiries for other interests in another estate and in that case, we were still waiting. The California lawyers were just waiting to wrap it up. And they said, “oh yeah, we’re glad to hear from you, we weren’t sure who the executor was, we were going to get back to you”. They were in no rush because they were still in the middle of cleaning it up. But it was a fruitful inquiry in that case and a fair amount of money came up from California. So you don’t want to miss an asset that might be out there in the form of an estate that has already fallen but hadn’t actually been paid out.

Suzana Popovic-Montag: That’s a really good point. I certainly have my own checklist, have a reference to the fact that, you know, you should be advising the Post Office so that mail can be re-directed, following up with the Passport Office and health cards, those kinds of things that have to be advised or cancelled. Driver’s license for the deceased, the Social Insurance number and, of course, any credit cards that he or she may have had in his or her own name.

Ian Hull: With the advent of points and Air Miles and so on as well, you want to deal with the transfer of that. My experience with that is, is that it can be fairly important.  I mean, if someone has lived a busy life and been on lots of airplanes or built up a lot of points, it can mean a fair amount of money. And I also find that the Air Miles companies and so on are typically pretty sensitive to the fact that they have some flexible rules. You have to do it reasonably quickly.  I mean, they won’t let you sit around forever. But often some of them will let you distribute the points in a fairly flexible way like, you know, split them amongst the family or that kind of thing, or roll them into the spouse’s name quickly and so on. So that’s worthwhile following up.  And I guess what makes it, you know, worthwhile and what this process and the letter writing, the importance of it is, is that if you work from a checklist, you don’t miss a major asset. And if you don’t…for example, a little thing like change the Post Office address and you lose the notice of an investment portfolio coming to your attention, then you’re exposed as an executor. So this administrative stuff, while on the face of it looks like stuff that, you know, oh my gosh, first of all who would bother or who really thinks about these things.  They actually can be really important because ultimately if you miss an Air Miles and the deceased died with 700,000 Air Miles on his card, it may mean a lot to a beneficiary. And in a case like that with those kind of points…one case I was involved with it was an emotional point because they were a little frustrated by the fat that their mother had spent so much time away from them. And so, in a sense, it was like a bit of the payback for all of her time. So, I mean, there are little anecdotal things that can happen. Club memberships, for sure, is another thing to think about because there might be some equity in the club membership and so forth.

So, I think what we wanted to try to talk about today was:

1. Our busy week that we’ve thought we’d share with everyone; and
2. Some of these sort of… tangible, sort of, roll-up-your-sleeves steps that you want to take a look at.

Because next week, we’re going to turn to the question of valuations. And that is in and of itself worth a week of podcasting straight without taking a break.  But we’re going to talk about the concept and talk about how it plays such an important role in an estate administration during our next podcast. Thanks very much.

Suzana Popovic-Montag: Thanks to you, Ian. And we do look forward to hearing from our listeners. You can send us an e-mail at hullandhull@gmail.com or just pick up the phone and call 206-457-1985. We hope you enjoyed the show.

You’ve been listening to Hull on Estate and Succession Planning with Ian Hull and Suzana Popovic-Montag. The podcast you have been listening to has been provided as an information service. It is a summary of current legal issues in estates and estate planning. It is not legal advice and you are reminded to always talk with a legal professional regarding your specific circumstances.

To listen to other Hull On podcasts, or to leave a question or comment, please visit our website at www.hullestatemediation.com.

Our theme music is UpTempo14 by Gary and is courtesy of the Podsafe Music Network.

/mem

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Listen to Asset Particulars

This week on Hull on Estate and Succession Planning, Ian and Suzana talk about the importance of keeping track of asset details.

Comments? Send us an email at hullandhull@gmail.com, call us on the comment line at 206-457-1985, or leave us a comment on the Hull on Estate and Succession Planning blog.

Asset Particulars - Hull on Estate and Succession Planning Podcast #98

Posted on February 5^th, 2008 by Hull & Hull LLP

Suzana Popovic-Montag:  Hi, and welcome to Hull on Estate and Succession Planning.  You’re listening to Episode #98 of our podcast on Tuesday, February 5^th, 2008.

Welcome to Hull on Estate and Succession Planning, a series of podcasts hosted by

Ian Hull and Suzana Popovic-Montag, that will provide information and insights into estate planning in Canada, from the offices of Hull Estate Mediation in Toronto, Ontario, Canada.  Here are Ian and Suzana.

Ian Hull: Hi Suzana.

Suzana Popovic-Montag: Hi there Ian, how are you today?

Ian Hull: I’m just great.

Suzana Popovic-Montag: That’s good.

Ian Hull: So just as a reminder, we have set up easy to get access to our daily podcasts and blogs. Go to hullandhull.com for that, but we’ve also set up a call-in line.

Suzana Popovic-Montag: And what we’re hoping to do is to hear from you there at area code 206-457-1985.

Ian Hull: So we encourage it and hopefully we’ll get some people interacting in this over the weeks to come.

Now we’ve been working through and looking at questions of really, estate administration techniques that we can help assist our lawyers and assist ourselves in the process of trying to work through an estate administration. And of our checklist or things to do in getting things organized before we pass away, one of the things that I keep harping on is trying to keep a running total of your assets and so on. But let’s spend some time today talking about particulars of what we want to have on that list.

Suzana Popovic-Montag: One of the things that I certainly encourage people to keep a list of, Ian, is their insurance policies. Things like insurance on their vehicles, on their home, on their personal belongings, so that these things are put into one place or are easily accessible or at least, you know, you have an opportunity to know that you’ve found everything that you’re actually looking for.

Ian Hull: And that… can be very important. One of the things that people forget is that just because you paid the premium doesn’t mean that the insurance company is going to pay the claim. And you need the policy. This is particularly important with life insurance as well. It’s best to have the policies located in one single spot or easily found in some way, shape or form so that it takes a lot of the burden off your executor when the time comes that they have to move quickly. For example, if you’ve got a car and you don’t know whether or not it’s insured, that’s going to be an urgent issue that you have to deal with.

Suzana Popovic-Montag: And certainly when you’ve got real estate, there are situations where the death of the owner of the insurance policy is going to affect whether or not that insurance company will continue to insure that asset. And so you want to make sure that if there is the requirement for some vacancy permit or something like that, that the insurance company is notified of the change in circumstances so that the insurance does continue to be effective.

Ian Hull: One of the questions that people often ask is, “What do we do with the house now that it is unoccupied if the person has passed away?” And it’s a case-by-case answer and it depends on almost every situation. It depends on the insurance company itself but typically what an insurance company will say is, ‘we don’t want to continue to insure a house that is vacant except if you’ – and then this is where it is case-by-case – ‘except if it is properly being monitored.’ And they’ll often say, ‘we want to make sure there’s first of all there’s maybe a security system in place.’ Another idea that often they say is, is that you guarantee that you’ll check it every day. That way you can preserve the property in the interim while you’re going to get it ready for sale or distribution to the beneficiary but at the same time keep it well insured.

Suzana Popovic-Montag: And just in terms of being well insured, I think that just sort of tweaks me to the fact that if the personalty, or the things that are within the house, that are valuable had otherwise been included in the value of the home for the purposes of insurance and now those things are no longer there, then you want to make sure that what you do have in place is adequate insurance for the house.

Ian Hull: Okay.  So let’s talk just more about this real estate and how…we’ve talked about the insurance aspect…but how we deal with real estate generally.

Suzana Popovic-Montag: And what I think of in these situations when we’re dealing with a piece of property is the real estate taxes that are either outstanding up until the date of death or will have to be paid on a go forward basis.

Ian Hull: And then, as you say, the contents of the house and the valuables and so on, you’ll want to make sure they’re well insured. But you also need to take control and custody over them in some way, shape or form. And so what I often tell my clients is that…go through the house and bring a video camera and video everything in the house - every room, every piece of furniture - so that at the other end of the day if someone says, “Geez, you know I used to have a beautiful chest of drawers in that room and it’s gone,” you have an answer to say, “No it isn’t, it never was there because here’s the video that I took the day after I got the job of being an  executor.” It’s a trick that you can get trapped and you can get caught into and a nice answer to it is if you have the evidence in response to it.

Suzana Popovic-Montag: And that’s so much easier than the suggestion to go and make a handwritten list, for instance, and helps with the identification too, so I think that’s a fantastic suggestion.

Ian Hull: One of the things that you really struggle with, I think, in the whole management of the real estate is when they’re in a commercial or semi-commercial, and I call that semi-commercial as a residential landlord situation. Or commercial landlord situation. What early action steps need to be taken?

Suzana Popovic-Montag: Well, in those situations, Ian, I think it’s always recommendable to look for the lease, to review its terms and to see about contacting the tenants so that in terms of going forward and collecting rent and making any re-direction of payments that are necessary, that you can do that by having this documentation firstly in hand and secondly understand what it provides for.

Ian Hull: And as with any piece of real estate, you want to know what encumbrances are on the property.  For example, a mortgage, sometimes the mortgage is mortgage insured. But if it’s not mortgage insured, you want to look at the terms because some financial institutions might be prepared to re-negotiate the mortgage because the person’s passed away. You might be able to get more favorable terms and so forth. Now that’s all good news, but it’s also probably expected of you as an executor to look into that level of business expertise.

Suzana Popovic-Montag: And when we started this series of podcasts, Ian, we talked about, you know, executors doing their homework.  But this is another illustration of those kinds of things that we’re hoping that people will do during their lifetime in terms of, you know, getting insurance documentation together, getting information about real estate together and here now rental property or leases or mortgages, that kind of stuff. If it’s all together, it certainly will help your executor at the end of the day.

Ian Hull: So Suzana, what happens if the deceased was renting a property, say renting a condominium or an apartment building unit?

Suzana Popovic-Montag: Well, one of the first things that you’d want to do is to contact the landlord and advise them of the fact that the tenant has now passed away and see how you would go about either cancelling the lease and providing vacant premises or otherwise dealing with the interim period until decisions are made as to how to go on.

Ian Hull: And I guess in the right circumstance, you might even want to look at subletting if you can’t get out of the lease arrangements that they were in.

Suzana Popovic-Montag: That’s probably a really good suggestion.

Ian Hull: Okay. This is a bit of a loaded question and we’ll spend more time in future podcasts on this as well, but what do you do if you have an ongoing business?

Suzana Popovic-Montag: Well that really is, as you say, a loaded gun because that’s not something that you can just quickly cancel and put aside and deal with on a rainy day. You actually have to arrange for the continuity and I’d say competent management of the business in the meantime until either you distribute it pursuant to the terms of the Will or you continue to manage it in accordance with the terms of the Will

Ian Hull: And without getting into too much detail in this podcast, you’re right, I mean it’s such a loaded question.  But, you know, in the course of the continuity and creating a competent management team, you probably want to meet with them and create some sort of short term plan of action as to how you’re going to operate the business.

Suzana Popovic-Montag: That’s for sure. And you may also want to review if there’s any buy/sell agreements that are in place, shareholder’s agreements or those kinds of corporate documentation that may provide for how to deal with the situation in the meantime.

Ian Hull: Okay. We are now inching toward that fateful moment of getting probate and we’re not quite there.  But one of the first steps that we want to make sure we’ve got under control is opening an estate bank account. Coincidentally I’m on my way after this podcast to go close a bank account which is full circle on an estate administration. But in this case, we want to be mindful of what’s going to be necessary and:

1. Is opening a bank account necessary? and
2. What are some of the steps we’re going to have to take in that regard?

Now what I often will do is I will send a letter to the bank just advising them, because I don’t have probate. They’ll want probate before they’ll actually open the bank account typically, but I don’t have probate in hand.  But I’ll write them and say, “Look, I’m the executor, here’s a notarial copy of the Will. I look forward to seeing you, my face is now on this file, not the deceased’s.” And it softens the bank up and it gets it ready to sort of deal with an account that is not normal anymore. or is not being dealt with by someone who’s alive. And I send that same to the financial institutions as well, sort of priming everybody to know that I’m coming down the pipe. I don’t have probate.  I’m applying for probate, or if I’m not, in the right circumstances. But typically you’re going to be applying for probate if you’re going to need to get money out of financial institutions. So I’ll just make it clear that I’m applying for probate and you can expect to hear from me shortly. This letter actually does take the account out of the mainstream of the bank operations and flags it in some meaningful way so that they’re going to be ready for you when you get your probate application. It doesn’t take much time and it’s a helpful step

Suzana Popovic-Montag: I think it also helps, Ian, in the event that the account is somehow held jointly with another to put the bank on notice of the fact that one of the joint account owners is no longer alive and there may be consequences that arise from that, if it’s not clearly a, you know, right of survivorship kind of situation.

Ian Hull: Okay. So finally, just because again I’m coincidentally on my way to go do this as well, is the locating and cleaning out the safety deposit box. An important step and again one that you want to document very carefully. I will often just take notes of what I have taken out of the box or make an inventory as soon as I’ve emptied the box, back at the office, of everything that I’ve taken out. Sometimes I’ll even video that moment in time.  That’s not always the case. But you want to make sure that you keep the custody of the documents and whatever is in the safety deposit box under tight reign and control.

Suzana Popovic-Montag: Well I think that brings us to the end of this week’s discussion. Thanks very much to all of our listeners for joining us and thank you for joining me today, Ian.

Ian Hull: Thanks very much Suzana. And again, don’t forget to come to our webpage at hullandhull.com and you can link into our daily blog.

Suzana Popovic-Montag: And we hope to have a little bit of interaction with the comments from the people who are listening and any comments, questions they might have we’d look forward to receiving them.

Ian Hull: So for that number again 206-457-1985. Thanks so much.

Suzana Popovic-Montag: Thank you.

You’ve been listening to Hull on Estate and Succession Planning with Ian Hull and Suzana Popovic-Montag.  The podcast you have been listening to has been provided as an information service.  It is a summary of current legal issues in estates and estate planning.  It is not legal advice and you are reminded to always talk with a legal professional regarding your specific circumstances.

To listen to other Hull On podcasts, or to leave a question or comment, please visit our website at www.hullestatemediation.com.

Our theme music is UpTempo14 by Gary and is courtesy of the Podsafe Music Network.

/mem