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Listen to becoming an executor after death.

This week on Hull on Estates, Ian Hull and Suzana Popovic-Montag, discuss becoming an executor after death and three issues that must be addressed immediately.

Comments? Send us an email at hull.lawyers@gmail.com, call us on the comment line at 206-350-6636, or leave us a comment on the Hull on Estates blog.

Becoming an Executor After Death - Hull on Estates Podcast #115

Posted on June 17^th, 2008 by Hull & Hull LLP

Suzana Popovic-Montag: Hi and welcome to Hull on Estates. You’re listening to Episode 115 of our podcast, on Tuesday, June 17^th, 2008.

Welcome to Hull on Estates, a series of podcasts for the Canadian legal community dealing with issues and insights surrounding estate planning in Canada.  Hosted by the lawyers of Hull & Hull, the podcast will touch on some key considerations when planning estates and wills. Now, here are today’s hosts.

Ian Hull: Hi, this is Ian Hull.

Suzana Popovic-Montag: And Suzana Popovic-Montag.

Ian Hull: And we are thrilled to be back on Hull on Estates. Before we get into this, we have to remind everyone that Suzana’s voice may be affected slightly today in the podcast. She has just suffered a broken wrist and has full access to everything except a fairly immobile right arm which I understand she is right-handed.  So any errors and omissions in today’s podcast are entirely related to the bad wing.

Suzana Popovic-Montag: And God knows, I’m always looking for an excuse.

Ian Hull: So, we’re excited to be on Hull on Estates. We’ve had some really interesting episodes before this one and a great one with Dave Smith last week.  But why don’t we just remind everyone to please feel free to call in on 206-350-6636.

Suzana Popovic-Montag: And you can find that number in our show notes if you didn’t catch it, along with our e-mail address which is hull.lawyers@gmail.com.  And, of course, you can feel free to visit our blog as well, at estatelaw.hullandhull.com.

Ian Hull: Well Suzana, we enjoy doing our podcasts weekly on Hull on Estates and Succession Planning, and in the past series that we’ve been working on, in that podcast venue, we’ve been focusing on estate administration issues and how to better be prepared to be an executor. Our last few podcasts have been dealing with estate accounting issues, but prior to that we had focused a lot of our attention on what are the early stage steps that we must consider or we think we must consider, and we tell our clients to consider, when they take on the heavy burden of being an executor. So I thought today would be a good opportunity to go through some of the practical early steps and I think we want to focus on the steps for a very specific period in time.

Suzana Popovic-Montag: And that period, of course, is the one just after being advised of the death.  And the first question that comes to us as a lawyer is, who is our client? Ultimately, you know, we’ve got someone who comes in to us, they’ve got a copy of a Will, and the Will appoints an executor or it doesn’t, or there is no Will.  And the question is, how do we assist the individual who is sitting across from us right from the get-go?

Ian Hull: And at that point, I always like to focus on what possible roles that individual or that group of individuals has in the process. An easy example for me is when you have a situation where you might have a surviving spouse as named executor, plus you have the family accountant and you have the family lawyer, who have been trusted advisors of the deceased.  And, of course, the surviving spouse who is typically financially significantly impacted by the Will. And in that scenario at that first meeting and that first consideration, who your client is, is very important, because that surviving widow will have separate individual, if financial interests, that need to be considered. And I think an easy example is the case of Reed vs. Reed Martin, probably ten years ago now, but where the Court essentially had set out the practice being that if you have a surviving spouse, you probably need to, as the lawyer for the estate, tell that surviving spouse about this delineation, this personal interest, and this fiduciary interest that she has.

Suzana Popovic-Montag: And I guess no one could really tell the client better, Ian, than you, having actually argued that case from what I recall.

Ian Hull: Well it was one of the few cases that I actually won, but the case stands for the proposition that a surviving spouse, when making an election or obviously a Succession Law Reform Act claim, is really essentially precluded from acting as a trustee.  And that’s sort of a stark example of how you want to initially talk about and consider who is your client.

The next issue which is maybe a bit morbid but you’ve been given the job of an executor and morbid is your life, the physical issues and the urgent physical issues that arise.

Suzana Popovic-Montag: And I guess what you’re eluding to there, Ian, is the fact that in most cases, I would say almost these days, people are actually signing organ donor cards and providing for the use of their body upon their death.  And how an executor is going to deal with that, in light of firstly, the emotional issue of dealing with the death at all; and secondly, possibly competing family abuse on whether or not those issues of the deceased should, in fact, be respected.

Ian Hull: And this whole question comes from the fundamental obligation of an executor to have “control and custody of the body”. You typically won’t have probate at that moment in time, but you will have the obligation to deal with the body. The transplant issue is a great example of a complex scenario that you’re going to probably have to consider.  And the basic issue, too is, of course, getting the funeral organized and dealing with what can be family dynamics as to cremation or burial and sometimes the Will doesn’t speak to it, and those kinds of things. So the physical issues about that are important.  And, you know, in terms of the transplant issue, of course, there’s the possibility that there is some tension as to whether or not, of course, transplant is required for some of the organs.  But there are other physical issues as well.

Suzana Popovic-Montag: One of the things that it just sort of brings to mind, Ian, is the very first case that I worked on when I came to Hull & Hull, and that was actually what we morbidly call ‘the fight over the body’.  And it was a situation where I personally, as someone who hadn’t had a lot of experience in estates, was shocked to find that the executor can determine the funeral arrangements and that he or she can trump any of the family member’s wishes in that regard. So I know that that certainly surprises people even when I advise them in the course of meetings, as well. It’s a very powerful right that an executor really does have.

Ian Hull: So one of the things that we’re going to talk about is the financial steps, and we’ve got sort of a few bullet points at the end of this podcast we want to talk about.  But one of the things that sort of stems from that is the need…a lot of financial institutions require…is the need for the death certificate. And the death certificate can play actually an unusually important role in an estate administration at this early, urgent, immediate stage. For example, if you want to create some cash flow to pay some funeral bills and so on, often banks will require presentation of a death certificate and a copy of the Will, not probate, usually, for the payment of that, and also insurance companies. If you want to get the cash flowing on the insurance company side, a death certificate can be vital. So getting the death certificate again, is important. The funeral directors are usually careful about just handing out a death certificate to just anyone. They want to make sure you have jurisdiction to receive the death certificate.

Suzana Popovic-Montag: And that really is a particularly timely issue of consideration these days when we see a lot of talk about the impetus to really know your client, so to speak. And financial institutions are looking for validation of the fact that they’re dealing with someone who is authorized to speak on behalf of the estate, as are lawyers as well.  And so just being able to demonstrate that is a really key issue.

Ian Hull: Alright, so that’s some of the immediate, there are lots of other immediate issues that come to mind.  But let’s turn, so we have enough time in this podcast to sort of fit this all in, and talk about what would be, we would consider, the immediate financial issues.

Suzana Popovic-Montag: And I guess what you’re eluding to there, Ian, is just actually right from the get-go, stepping into the home of the deceased, their prior place of residence, and dealing with the issues right off the beginning. Like cancelling, for instance, deliveries of newspapers, subscriptions of papers, suggesting that a family or friend can stay at the home just to take care of the home in the meantime, removing and securing any valuables and putting them in safekeeping.

Ian Hull: And one of the things that I will do, I would tell my executor clients to do two other immediate steps as well with the house, and that is, (1) change the locks. It makes people crazy sometimes.  Obviously in certain circumstances this is not appropriate.  But remember you are charged with, like you are charged with the care and custody of the body, you are charged with care and custody of the property, and often, in a lot of estates, the main asset is the home. So, if you don’t take the basic steps like changing the locks, I think it can be problematic. 

And the other twist is, is that I encourage my executors to grab a video camera and walk through the house with the video camera to determine the assets and the chattels, I mean, in terms of what’s in the house with more certainty. And the final subtext of that is, of course, there are lots of houses such as Waddington’s and Sotheby’s and so on, that will come in and create a comprehensive inventory of each and every item in the house, with valuations, which can cost a little bit of money sometimes, but can be a very, very useful evidentiary tool as an executor and one that is too often overlooked at this immediate, urgent stage.

Suzana Popovic-Montag: Another thing that I think is really important right from the get-go is to make sure that any property owned by the deceased is properly insured including their home, their cottage, any other properties they might own, cars, other forms of vehicles and that. It’s very important to make sure that that insurance is in place and that it continues on properly.

Ian Hull: Okay, well I think those are sort of…obviously this is, we’re dealing with a very specific point in time in an estate administration and every estate administration has its own twists and turns.  But in preparing for this podcast, we sat down and tried to highlight some of what we find are matters that end up being contentious later and therefore, are helpful to be alerted to now. So if you have the job of executor, it seems to me, don’t forget that that job starts immediately; a lot of these steps are urgently required and once you get over that hump, an administration can be done in a timely but not as stressful environment.

Suzana Popovic-Montag: Well I think that brings us to the end of this podcast, Ian. It was great being back on Hull on Estates with you. I’d like to remind our listeners to again, please feel free to give us any feedback at 206-350-6636.

Ian Hull: And, of course, we look forward to hearing from you. An easy way to get to us is hullandhull.com, our webpage and that links you in to all of our blogs and podcasts.  But feel free to e-mail us at hull.lawyers@gmail.com.

Suzana Popovic-Montag: Thanks very much, Ian.

Ian Hull: Thanks, Suzana.

This has been Hull on Estates with the lawyers of Hull & Hull. 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 podcasts, or to leave a question or comment, please visit our website at www.hullandhull.com.

Our theme music is Upper Structure by DJ AKid  and is courtesy of the Podsafe Music Network.

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Listen to Funeral Considerations

This week on Hull on Estate and Succession Planning, Ian and Suzana discuss the considerations and responsibilities of estate trustees at the time of a funeral.

They also introduce Malcolm Gladwell's book 'The Tipping Point' as a different way of understanding family behaviour at the time of death.

Funeral Considerations - Hull on Estate and Succession Planning Podcast #95

Posted on January 15^th, 2008 by Hull & Hull LLP

 

Suzana Popovic-Montag:  Hi, and welcome to Hull on Estate and Succession Planning.  You’re listening to Episode #95 of our podcast on Tuesday, January 15^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?

 

Ian Hull:  I’m okay.  I don’t know if I have a bit of a cold.  I’m a little out of kilter today but I’ll hopefully get through the podcast.

 

Suzana Popovic-Montag:  Now I have to ask you, at the end of our last podcast, you were talking about your New Year’s resolution.  I’m just wondering how that’s coming along one week later now?

 

Ian Hull:  My resolution not to drink before noon.

 

Suzana Popovic-Montag:  Yes, that would be the one.

 

Ian Hull:  Yeah.  I’ve managed to go 4 days straight without doing it so…

 

Suzana Popovic-Montag:  That’s great.

 

Ian Hull:  No, it’s been good.  It was a long time ago since the holidays but it was a great holiday and I know you and your family got up skiing and so did we, so that was a nice break.

 

Suzana Popovic-Montag:  It was, now with the weather being the way it is though, we just hope it holds out for the rest of the winter.

 

Ian Hull:  Yeah, no kidding.  It’s been a strange winter for that here in Toronto.

 

What we thought we’d go through today is…maybe none of these topics are particularly necessarily happy topics but we’re in the business of death and we can’t avoid that.  So we’re trying to work through and bring to life, so to speak, some of the mechanical expectations and the practical expectations that one faces when they get the job as a trustee and executor.  And so we talked briefly, and actually in our last few podcasts, we keep touching on this topic.  So I want to sort of close the loop on this one aspect of it.  And that is the whole question of the funeral.  And to most people, this can be a pretty daunting task if you are the executor or you expect to be the executor.  So why don’t we spend some time talking a little bit about that.

 

Suzana Popovic-Montag:  That’s a good idea, Ian.  And we know typically that estate trustees or executors, whatever the term that you want to use, are responsible for making the funeral arrangements.  And they are the ones who have the authority to make the decisions concerning how an individual is ultimately laid to rest.  And the reality is, though, that so many times upon a death, there is such a hustle and bustle that occurs, the family gets involved and these arrangements can be made even before a Will is actually found, if there is in fact a Will.

 

Ian Hull:  And as we’ve said in the past, don’t forget that the Will speaks from death, so the authority question really shouldn’t be in doubt, except in special circumstances where there might be other Wills.  One of the things from a practical standpoint, we don’t profess to sell life insurance but we keep talking about encouraging people to buy life insurance for some estate planning needs.  The other thing I do not profess to do is sell pre-purchased funeral arrangements but having said that, having been involved in these kinds of cases for so many years, those who do take advantage of that product that’s out there, and that is, sort of buying up the service before you die (a) there’s a financial benefit to it and (b) it really does take some pressure off the family.  So you may want to look into making those arrangements as necessary before you pass away unless you want to pass that on to the executor.

 

One of the questions that many people face for those who haven’t prepaid for the funeral, is how am I going to pay for this?  They walk into the funeral home, they realize, I mean lots of funerals are anywhere between $15,000 - $30,000 in terms of once you’ve had a reception after and so on.  And, you know, a lot of people don’t have that money just sitting around in the bank.  What do we do about that situation?

 

Suzana Popovic-Montag:  And I guess, Ian, this is still in the pre-probate stage when we’re talking about these arrangements being made because someone has just passed away and probate hasn’t been sought yet.  And we say typically that the Will is the authority for things to be done by an executor.  But in these situations, we typically find that banks will make an exception, so to say, in order to provide the funds for the payment of a funeral account.  And so if you’ve got a Will with an appointment that names an executor, you’ve got an account for a funeral bill, then typically you’ll see that the banks will make arrangements to pay this even without the benefit of probate.

 

Ian Hull:  Okay.  Another important question is the stone itself. 

 

Suzana Popovic-Montag:  That’s right.  The memorial stone and what I think that people want to consider is making arrangements for the purchase of that, if that’s something that would be applicable in the circumstances.  And again, you know, you want to arrange for the payment of that afterwards and again, the banks are willing to facilitate the payment of those kinds of expenses even without probate.

 

Ian Hull:  And I don’t…I tell my clients not to underestimate the emotional aspects of these two things.  One is making the funeral arrangements and two is actually arranging for the stone.  Unfortunately, on both of those fronts, we are involved with contentious estate administrations where there’s a fight over what’s going to be put on the stone, what size the lettering will be for who, what names are on there and so on.  So again, I mean these are things that if you want, you can sort of deal with before you die.  But if you don’t want to deal with it before you die, make sure you’ve maybe given some direction to your executor or you’ve picked an executor who is strong and is prepared to take on that courageous task, in some cases.

 

Suzana Popovic-Montag:  Because we can’t forget that these are really emotional times for family members.  And so there are flashpoints that you wouldn’t even be able to predict or expect, but the reality is these things happen.  So to the extent you can try to facilitate that in advance, I think that can only help.

 

Ian Hull:  A couple of little procedural questions that come up.  One is the importance of getting the funeral director’s Proof of Death Certificate.  It is such a vital document at the early pre-probate stage.  And you should make those arrangements quickly and get that organized.  Typically you’ll want to get several copies from the funeral director itself.

 

Suzana Popovic-Montag:  The other thing you’ll want to consider possibly also is obtaining the provincial Death Certificate which you will need probably in circumstances when you’re looking to cash out proceeds of life insurance and those kinds of assets that were previously owned by the individual.

 

Ian Hull:  So you can see a lawyer too, to just get extra copies of these in what we call notarial form, if necessary.  I apologize as we go along here because my cold is not getting better but getting worse as we talk.  Alright, there are some aspects to…sort of some technical aspects to getting these certificates and getting the Death Certificate and so on.  And again, if you’re running into trouble in the right situation, you really should spend the time and effort to get to see a lawyer quickly on this, because there are ways to expedite the certificates if needed, there are ways to deal with the funeral directors and so on.  And these issues can be fairly pressing in situations where sometimes you want to release funds such as insurance proceeds.

 

Suzana Popovic-Montag:  I think, Ian, that basically sort of ties together with the thoughts that we had on funeral arrangements that are made in these situations.  And I thought it might be a good point to talk a little bit about this great theory that you’ve been telling me about recently and you’ve been speaking to a lot of people about, the Tipping Point theory.  Can you tell us a bit about that?

 

Ian Hull:  Sure, and I think what we’ve, when we were, Suzana and I were sitting down assessing our 2008 plan of action for our podcasts, we thought we’d try to interject from time to time some additional aspects.  A big part of social media is trying to discuss and deal with and obviously download information to the extent that we can that’s helpful to people who are interested in our topic area, that being estates.  But a big part of the social media revolution and what makes podcasting so exciting, and blogging as well, is trying to sort of incorporate what’s going on out there as well.  And so we wanted to add a quick segment to today’s podcast, on a book that I’d been reading over the Christmas holiday and really enjoyed, and I thought was something that was worth discussing because it does tie in to many of our life moments.  And we see in the estates world the tipping point, and that tipping point sometimes is, of course, the triggering of death.  Now, The Tipping Point is a book that we’re going to get into in more detail on our next podcast.  But it’s a New York Times Best Seller book out there right now, and I’ve been reading it and enjoying it.  But it’s that magic moment…they describe it as that magic moment when an idea or a trend or a social behaviour crosses the threshold, tips and sort of spreads like wildfire.  Now what was interesting to me was that the tipping point in many estates, whether they get contentious or non-contentious, but obviously most often contentious, is death can be a tipping point.  And the issues of emotions and sort of illogical behaviour maybe on the part of some of the family members and so on, spread like wildfire in many situations.  So I’ve been enjoying this book, The Tipping Point, and I thought we could spend a couple of minutes and talk about what their analysis is, understand what the tipping point is, which I’ve just defined it, then talk a little bit about what the tipping point means and how we can identify a tipping point, because then we can start to maybe help manage the wildfire that sometimes gets created when the obvious tipping point of death hits in our world.

 

Suzana Popovic-Montag:  I think that’s the great thing about the title of this book, Ian, and the whole concept of it.  It just seems to transcend so many different areas.  It’s not just a business philosophy.  It’s not…you can bring it into the estates context.  And it seems that it can apply in almost any situation.

 

Ian Hull:  I agree.  And I mean that’s why, when I looked at the definition in the back of the book, it described it.  You know, it talks about social behaviour crossing the threshold and then spreading like wildfire.  And most people see their family in a relatively dysfunctional framework, but while everyone is alive.  But everybody sort of lives with it.  But when the glue starts to come undone and the tipping point hits when one or more of the, sort of, heads of the family pass away, this spreading like wildfire I think is something that we have to…and we focus so many of our podcasts on…try to manage.  And so let’s spend a few minutes just talking about what that wildfire is all about.

 

And in the book, what they talk about was the classic…an example that they started off with was with the Hushpuppy Shoes.  And this is an American brand, it’s sort of a brushed suede shoe that when I was a kid, I used to wear them.  But in the mid 90’s, it became…it hit the tipping point.  And the illustration here was…this is a business illustration…was the brand was just all but dead, there was about 30,000 pairs a year that were being sold and then something happened. 

 

Suzana Popovic-Montag:  And that something was some kid suddenly in Soho, who thought that they were a little bit different or little bit unique, they started to wear them in New York.

 

Ian Hull:  And so these kids got picked up…this trend started to get picked up by local designers in the Soho, New York City area.  And eventually from 30,000 sales in 1994, it went to 430,000 in 1995.

 

Suzana Popovic-Montag:  And so then what happened is that the idea was that the shoes had suddenly passed this certain point of popularity and then they tipped.  They sort of hit that point where they just, you know, they hit the jackpot, so to speak.

 

Ian Hull:  So this was an example and we wanted to sort of set that up in this podcast, because we’re going to work through this example and this concept.  But we’ll keep the Hushpuppy concept in mind as we go through it because it is an example of where a social phenomenon tipped and the book spends a lot of time using it, and many other examples, in showing why it tipped, what happened, what went on and so forth.  And another example we’re going to talk a little bit is about some historic moments in time where things changed and affected the American society strongly throughout the book, is analyzed.  So anyway, it’s a good…it’s a fun book.  I think it’s a telling book in our area even, and I think it also gives people an idea of a little bit about what’s out there beyond just our sphere of estate world.  I think it talks about social behaviour in a way and an understanding that can be very helpful.

 

Suzana Popovic-Montag:  So if anyone is interested in following up and looking at the book itself, we’ll put a reference to it in our show notes and we’ll look forward to our next podcast, Ian.

 

Ian Hull:  Thanks so much, Suzana.

 

Suzana Popovic-Montag:  Thanks to 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.

 

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