This week on Hull on Estates, David Smith and Natalia Angelini talk about the duties an estate trustee he or she is charged with from the moment of a testator's passing. Duties include locating the will, making funeral arrangements and being responsible to see the intentions of the testator preserved.

Feel free to send us an email at hull.lawyers@gmail.com or leave us a comment on the Hull on Estates blog.

Dealing with Estate Issues That Arise Immediately Upon Death - Hull on Estates Podcast #135

Posted on November 4^th, 2008 by Hull & Hull LLP

Natalia Angelini: Hello and welcome to Hull on Estates. You’re listening to Episode #135 on Tuesday, November 4^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.

David Smith: Hi and welcome to another episode of Hull on Estates. I’m David Smith.

Natalia Angelini: And I’m Natalia Angelini.

David Smith: If you want to be heard on Hull on Estates, you can participate by leaving us a comment. E-mail us at hull.lawyers@gmail.com or you can visit our blog at estatelaw.hullandhull.com. Hello, Natalia.

Natalia Angelini: Hi David. How are you?

David Smith: You know I’m okay. I’ve got a bit of a cold so my voice is about an octave lower than usual, but we’ll do our best today. So today, Natalia, we thought we were going to talk about the issue of what duties an estate trustee is charged with from the minute the deceased passes away.

Natalia Angelini: Right. It’s a really interesting topic because it’s a time when I think the estate trustee has to act fairly quickly to do a number of things, and I think the first of those is locating a Will.

David Smith: That’s right and I suppose at the outset too, we should give a little plug to Paul Trudelle of our office who has given a paper.  And there’s a webcast available on the website dealing with this issue as well. We’re, in our podcast, going to try and explore in a little more detail some of the issues that Paul touched on in his discussion.  So we commend that webcast to you. So I guess, what’s the first issue that usually arises for the estate trustee?

Natalia Angelini: I think the first can definitely be finding the Will of the deceased, because the first thing the estate trustee wants to ascertain is what the deceased’s testamentary wishes were.  And so that’s definitely an important thing to look for.

David Smith: That’s right and of course, you know everybody keeps their stuff somewhere different. In some cases, it’s a safety deposit box. In other cases, it’s a filing cabinet, under the mattress. It will depend on the person.  So if the executor is charged with the responsibility to look for the Will, they’re going to look in the obvious locations, and hopefully be able to find the Will.  And of course, the lawyer plays a role, because if the lawyer is known, he or she might have a copy of the Will.

Natalia Angelini: Right, exactly, so it’s a good idea to make inquiries with the lawyer of the deceased if you know who that lawyer is, or perhaps looking through the deceased’s personal papers, you can determine who the lawyer is and contact him or her that way.

David Smith: Right and you know, if you get into a situation where there’s just no luck finding a Will, you can advertise in the Ontario Reports.  That happens on occasion, we all see lawyers do that on the odd occasion.

Natalia Angelini: Right.

David Smith: When someone says, yeah, I knew so and so had a Will but I didn’t know who drew it.

Natalia Angelini:  Um hm. So I think aside from finding the Will, and probably one of the next things that the estate trustee is going to definitely be thinking about is making funeral arrangements.

David Smith: That’s right. And in the cases of an unexpected death, obviously that’s going to probably be a situation where the executor’s got to take some action of their own accord. Of course, with older people and people who are contemplating their own death through illness or what-have-you, or some other really sad situation, we’re seeing more and more that people will prepay their funeral or have them organized ahead of time.  But in most instances, the estate trustee is going to have to deal with this, you know, obviously rather unpleasant task, and certainly it’s the foremost concern.

Natalia Angelini: Absolutely.  And with respect to payment of the funeral, I think it’s helpful to note that those costs are of priority payment and come out of the assets of the estate.  So if it’s not prepaid then at least the estate trustee hopefully has assets available to make that payment.

David Smith: Well that’s right and it’s probably worth just making the point at this stage too, that the government provides a death benefit of $2,500.  And really that’s there primarily to fund the cost of the funeral or to contribute towards the cost of the funeral.

Natalia Angelini: Right, that’s a good point. In dealing with the funeral, I think this is a real interesting one, especially if you’ve maybe got a dispute between family members as to how it should happen, and potentially that may even differ with what the deceased has set out in his or her Will, and you’ve got a really interesting situation about how this deceased person is going to be put to rest.

David Smith: Well you’re right Natalia and we’ve seen situations where it’s potentially very emotionally volatile. You can have a situation where you have religion sometimes clash with the intentions of the testator. There’s one case where, the name escapes me, but Rick Bickhram of our office recently, I think a couple of weeks ago, blogged on a case where a deceased person named her boyfriend as executor. He was charged with acting as executor and intended to cremate her remains. The family, for religious reasons, opposed that and this matter ultimately went to Court and the Court decided that it was in the authority of the executor to make that decision.

Natalia Angelini: Right, and during Paul’s talk, he went through a few cases dealing with this issue and it seems to be that the consensus of the Court is that the duty of an estate trustee includes that duty to dispose of the body and that the estate trustee really has final say.

David Smith: Right, and you know that really seems to be a very settled law. Unfortunately, I think you’re still going to see cases go to litigation on this in the odd instance, not because the outcome is ever really going to be in question because the law seems so settled that the estate trustee can do what he or she wants.  But I suppose if I’m a bit cynical, for settlement purposes, someone might start that litigation in the hopes of arriving at some kind of compromise. So you know, certainly that’s an issue which regrettably can result in litigation on the odd situation.   But, you know, we keep repeating the same refrain which is that the executor has that responsibility.  And it’s worth also mentioning I think, Natalia, that you can say whatever you want in your Will about how you would like your remains to be disposed of; the reality is that the executor does not have to follow those, does he or she?

Natalia Angelini: Absolutely.  He or she does not, but interestingly though, his or her duty is to dispose of the body in a manner suitable with the estate of the deceased.  So even though the estate trustee may seem to be able to do whatever he or she wants, there’s definitely going to be criticism of a trustee who just, you know, goes ahead and, for instance, has an elaborate $50,000 funeral where the deceased has a fairly modest estate.

David Smith: Right. I think generally it’s expected that the funeral will be commensurate with the size of the estate, so I think that’s a really good point.  And also, there’s just a moral duty, I think, in this situation, where you’d expect the executor to do what the testator wanted.

Natalia Angelini: Right.

David Smith: It’s probably worth doing a little segway here, while we’re on this topic. I mean, this has to do now with the issue of donation of body parts.  And, of course, there’s legislation in Ontario that deals with that, right Natalia?

Natalia Angelini: There is. It’s the Trillium Gift of Life Network Act and it’s an interesting piece of legislation that allows a person to consent to the donation of their own body, or body parts, upon death.

David Smith: That’s right. So we’ve all sort of seen the situation where the consent card is kept quite often with someone’s driver’s license and this is an important priority.  And, of course, it plays an important role in given the success of transplant surgeries and what have you, that this is obviously an important legislative prerogative that this kind of intention can be preserved, even if it’s not contained in the Will.

Natalia Angelini: Right. And a spouse or other family members can also give their consent, even if the deceased hasn’t done so during his or her lifetime. So the difference here, I think, with the ability to dispose of the body, is that the family members seem to get priority over the wishes of the estate trustee.

David Smith: Right and it’s obviously a specific situation but it’s important to know because it’s the one significant departure from the common law rule that the executor’s decisions are paramount. 

Natalia Angelini: And frankly, it makes sense to me anyway.

David Smith: Oh, absolutely. I don’t see how we can quarrel with that. So you know, harking back to our topic for the day which is the executor’s duties, again it all boils down to fiduciary duty, doesn’t it Natalia? I mean really the executor’s got to make sure that he or she does what is necessary to see the intentions of the testator preserved.

Natalia Angelini: That’s right and I think it’s important to note particularly with this issue of disposing of the body, the estate trustee has to do so in a dignified way.  And so I think that’s in keeping with fulfilling his or her fiduciary duty. 

David Smith: Good point. Okay, so I guess we should move on to a couple of more issues, just given our limited amount of time that’s left.  And we were going to touch on children and pets, in that order. So let’s talk about children briefly speaking. It’s possible in your Will, isn’t it, to speak to guardianship?

Natalia Angelini: That’s right. Under the Children’s Law Reform Act, you can appoint someone to have custody of your child upon your death, and I think sometimes people do this, and they put this provision in their Will and I’m not sure that they’re always aware that this has some limited value.

David Smith: That’s right. The appointment is valid for 90 days but, of course, it’s important to note that if anybody else is entitled to custody and is not named in the Will, that that person obviously has a right to exercise custody and it might be pointed out that an application for custody can be commenced within that 90 day period.  And so, to some extent the wishes of the guardian, with respect to their children in their Will is somewhat precatory, isn’t it, in that it’s subject to other considerations.

Natalia Angelini: That’s right, but I think it may give some assistance to the family and to the children, really, so they know I guess who they’re going to be spending time with, at least in the short-term.

David Smith: True. And I guess the important point too is, in all likelihood, the custodial parent in their Will will say that if they die, in all likelihood, they’re going to appoint the other parent as the guardian of the children. I suppose you could have a situation where there are two parents, where one parent dies and provides in his or her Will that the guardian for the children is someone other than the other parent.  And obviously in that situation, the other parent is going to have something to say about that. 

Natalia Angelini: Absolutely, I’ve seen that type of case and I think, unsurprisingly, the other parent proceeded with an application in the Family Court for custody and that issue was resolved that way.

David Smith: Now the last point is in keeping with our concern about issues arising immediately upon death, of course, lots of people have pets.  And lots of Wills provide for pets as beneficiaries.  And pets need to be fed and watered, so obviously the executor’s got to look after that.

Natalia Angelini: That’s right and like you said, that’s definitely got to happen at the get go because we don’t want pets to be neglected.  And they’re usually, especially if they’re in a Will, very near and dear to the deceased’s heart.  So it’s important to make those arrangements.

David Smith: Right. And that’s going to also require the executor to act quickly as you pointed out. So good point as well, and Paul, in his paper, talks about crops and perishables. If you’ve got a business that’s running fresh produce for instance, and the business owner dies, any other perishable products, obviously it’s important to keep the electricity on, to keep things refrigerated and all of those sort of important things that have to do with ensuring that any inventory of the estate does not go to waste, because ultimately, the executor is going to be accountable to the beneficiaries, right, for what happens.

Natalia Angelini: Exactly. And I think, I guess the one thing to remember is, it’s so important for the estate trustee, I suppose to know, as far in advance as possible, whether he or she is a trustee and what the assets of the estate are and what the circumstances are so they can do their best to act as quickly as possible.

David Smith: Absolutely. That’s the biggest part of good estate planning, isn’t it? And it makes the job so much easier. And we should point out, too, that if it’s just an insurmountable job for the executor to take on, maybe you renounce.

Natalia Angelini: Right, or get a, if the estate assets can justify it, get a trust company in place or instead.

David Smith: Especially if there’s a business there, yeah, so I think that’s an important point to leave our listeners with is, you know, if you’re named as executor, you’re not duty bound to take on the job at all costs. If it’s not a realistic possibility for you to carry on the task, consider renouncing.

Natalia Angelini: Absolutely. Good point, David. So, I think that brings us to the end of this week’s discussion. Thanks for listening and thanks for joining me today, David.

David Smith: It was a pleasure, Natalia. I really look forward to podcasting with you again soon.

Natalia Angelini: And we look forward to hearing from our listeners. You can send us an e-mail at hull.lawyers@gmail.com. Be sure to visit our blog at estatelaw.hullandhull.com. where you’ll find even more information and discussion on today’s practice of estate law. We hope that you enjoyed the show. I’m Natalia Angelini.

David Smith: I’m David Smith. Until next week, so long.

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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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.

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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READ THE TRANSCRIBED PODCAST HERE

During this podcast on the role of the Executor, we discussed the following:

(i) applying for probate;

(ii) timing of distributions;

(iii) making funeral arrangements;

(iv) locating the will;

(v) filing the final tax return; and

(vi) providing information to beneficiaries. --------