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.

/mem

This week on Hull on Estates and Succession Planning, Ian and Suzana discuss things to consider when administrating the assets of an estate and point out burdens of being and executor.

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 Estates and Succession Planning blog.

Administration of the Assets of the Estate - Hull on Estate and Succession Planning Podcast #107

Posted on April 8^th, 2008 by Hull & Hull LLP

Suzana Popovic-Montag: Hi, and welcome to Hull on Estate and Succession Planning.  You’re listening to Episode #107 of our podcast on Tuesday, April 8^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: Just terrific, thanks.

Suzana Popovic-Montag: That’s good. We just want to take this opportunity before we get into the substance of our podcast to just remind our listeners that if they would like to leave us a comment, they can feel free to give us a call at 206-457-1985.

Ian Hull: And, of course, feel free to chase down our blog or send in a comment to hullandhull@gmail.com and the webpage hullandhull.com gets you a quick link to our blog which we’re posting almost every day on and had some interesting comments last week from our posts, so feel free to engage in the social media adventure.

Suzana Popovic-Montag: That’s great. Now I know, Ian, that you actually were podcasting solo last week because I couldn’t be here to join you and I thought you did a great discussion of your recent attendance at a seminar.  And so I thought what we might do is to, sort of, pick up from where we had left off at the end of our last podcast.

Ian Hull: Well, that sounds great. I do want to say one thing since that podcast was launched into the internet, I’ve had some interesting feedback that seminar was well received. Talked to a couple people that actually were at it and not particular, just what, of course, I said, which was hopefully helpful.  But some of the other speakers and the twists that were being put on the whole elder law scenarios that we’re going to be faced with more and more in society. So speaking of society, we have to refocus a little bit this week and talk about some issues relating to the administration of the assets of the estate and our ongoing slug through the burdens of being an executor.

Suzana Popovic-Montag: And we had at the last time spoken about the fact that we were looking at a situation where we suddenly had the Certificate of Appointment in hands, this probate document, and we were looking at some of the things that we take in terms of initial steps as an executor, once that document was obtained.

Ian Hull: So we’ve talked about this in the past and we’ve talked about personal effects, talked about the fact that we think it’s so important to make sure you document it, maybe take a video quickly of all of the personal effects or have some photos or whatever.  But once you’ve inventoried it, what do we do about getting the action steps to be taken to actually transfer or sell those personal effects?

Suzana Popovic-Montag: Well, Ian, in accordance with the terms of the Will the executor is going to want to deliver the individual personal effects directly to the beneficiaries who are named in there, and then obtain a receipt from those individuals, so as to have the protection of the fact that that gift or that bequest was made and that it was received by the recipient of it.

Ian Hull: And that receipt can’t go understated in the importance of that. We… I just had an estate that I recently administered and I personally made sure that the jewellery items that were delivered and they weren’t phenomenally expensive jewellery items, but they were very personal items and ones that, you know, the sort of chain of the ring from the deceased to you to the beneficiary is so very important.  And a lot of times, I’ll just say to clients, look if you’re the executor, don’t break the chain, so to speak. Once it’s in your hands, make sure that you’ve got full control of it and that you do not release it until you get a proper receipt.

Suzana Popovic-Montag: And then I guess, of course, there’s going to be personal effects that aren’t specifically spoken to and in those circumstances, an executor is going to want to arrange for the sale of those items.

Ian Hull: Absolutely. Now the sale of the items, too, can create its own spicy tension within the administration of an estate. One of the things that I tell my clients is that they want to quickly go on the internet, take a couple of minutes and search out what the sort of the star local sales avenues are. I mean, the classic one is Sotheby’s.  But not all of us have, you know, John Lennon pianos to put up for sale. But, you know, Sotheby’s has an operation in Ontario, Ritchies has an operation, Waddingtons is another one.  All of these houses are wonderful.  They do it so professionally and most of them will do sort of the gambit. If you give them – some of the stuff isn’t worth a lot but some of it is, they’ll often inventory it all for you and give you some help on how to deal with the stuff that is more modestly priced.  And then put in up for sale properly and by a third party, so you can’t get accused of messing up on the sale of selling that painting that sat over Grandma’s dining room table for 30 years, for a song. You’ll get the professional advisor telling you what its worth. They have some…like I know I just dealt with one from Waddington’s.  They have phenomenal internal resources like experts on Canadian art for certain periods that they’ll bring in and they won’t throw these things into the market, sort of, willy nilly.

Suzana Popovic-Montag: That’s great, Ian. And it’s something certainly to keep in mind because there’s always going to be these things that need to be dealt with. Another thing that I try to remind people of is the fact that once you’re in this stage where you’re actually liquidating or transferring assets, you want to consider also cancelling any insurance on those assets that you’ve maintained up until the time that that transfer is actually done.

Ian Hull: Geez, that’s a good point, you know.  I had an estate recently that had a bunch of art and the insurance on the art was almost an overwhelming cost to the estate and the beneficiaries were not happy that it took an extra month to cancel the insurance.  So that’s a really good point.

Suzana Popovic-Montag: And I think it sort of follows from the checklist that we’ve suggested that people maintain because it sort of brings you back to think about that and you can take care of it right at that time.

Ian Hull: Okay, so that deals with personal effects. What about cars and automobiles and that sort of thing?

Suzana Popovic-Montag: I think we’re looking at the same kind of situation there where there’s going to either be a transfer to someone who’s actually named in a Will or there’s going to be the arrangements made by the trustee to actually sell the vehicle.

Ian Hull: And again, I guess, your good advice on the insurances on that one as well.

Suzana Popovic-Montag: And so if we’ve looked at personal effects, we’ve dealt with automobiles, then those are usually the big items there.  Then we just are left with whatever’s ultimately left there and how we actually go about realizing those last things.

Ian Hull: And liquidating deposits and getting the, sort of, estate bank account established as quickly as possible is crucial.  And that, sort of, takes us into what we’ll start to call, I guess, the business side of the estate administration. The one side of many estates that we see the most problems in and that is, dealing with the accounting.

So first of all, setting up the bank account. You need your probate typically, to get a bank account opened. So you’ve got your probate certificate, you go to a bank.  You want, I tell my clients to go to a branch that’s convenient to you because you will be surprised how often you will have to actually deal directly with the bank. This isn’t always like us when people are alive, they can do internet banking, they can do, you know, cross-city branch banking, and so on.  You want to establish, I tell my clients anyway, to set up an account that is easy for you to get to.

Suzana Popovic-Montag: And once you’ve done that, you also want to think about setting up your bookkeeping mechanism because as an executor or a trustee, you’ve got to maintain very good records so that at the end of the day, if you’re called upon it, you can account to the beneficiaries of the estate or the trust.

Ian Hull: And it’s really at this time that I tell my clients to think about the end game now. You’ve been so careful so far, right from the moment of death or the moment you were told you had the job, you’ve been so careful.  This is really the turning point to maintain a level of almost perfection. You have to have receipts for everything, no money can go astray, obviously.  But your system is crucial.  And if you’ve got a situation where it is likely that you’re going to need to ultimately go to Court and pass the accounts, then now is the time to establish that system early, as opposed to remaking it at a later time when you don’t have all of the information at your fingertips.

Suzana Popovic-Montag: And so, Ian, in terms of advice, how do you usually tell your clients that they go about setting up this mechanism?

Ian Hull: Well, I think they’ve got to get good advice and accountants and lawyers know how to create estate format accounts. And it doesn’t hurt to (a) learn a bit about that and (b) set up a system that can be easily transferred into an estate format scenario.  Because the estate format accounting itself is – it can be something that is new to individuals who are not, you know, savvy on this form of accounts. It’s not rocket science, but it is a different form of accounts that you need to consider.

Suzana Popovic-Montag: And my clients are always surprised, Ian, by how different estate accounts are from normal financial statements. And I think that’s part of the education process that we provide to them about how these things are maintained.

Ian Hull: And I think, really, as I say, this is such an important turning point and starting point to the process, that I think it’s worth getting some initial advice on this and it may cost some money, but its all money well spent.

Alright, so now that we’re setting up the bookkeeping, we’re setting up the estate accounts. Let’s talk about, sort of, some of the long-term business aspects of administering this estate.

Suzana Popovic-Montag: In a situation where you’ve got a business that actually had been run by the deceased, in this instance, you’ve got to meet with the estate trustees and create, sort of, a plan going forward of how you’re going to either continue running that business or basically hiring individuals to do that for you as an estate trustee.

Ian Hull: Alright and that, of course, turns us at this point, we’ll wind up because it’s a good turning point in terms of how we will talk about the business side of things and let’s start focusing on some of the investment side that the – what people are going to expect you to be doing with the investments and what you’re expected to do on that front, depending on the estate itself. So I think that’s a good spot to wind up this podcast.

Suzana Popovic-Montag: Okay, and just another reminder to people who’d like to call in and provide us with their comments, to feel free to call us at 206-457-1985.

Ian Hull: And, of course, go to our webpage at hullandhull.com and work your way into it. Feel free to e-mail us at hullandhull@gmail.com and watch our blog. Thanks very much.

Suzana Popovic-Montag: Thanks to you, 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 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

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/.

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.

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This issue was considered by the Court of Appeal of Manitoba in Antonation v. Sylvester, 2007 MBCA 110 (CanLII). There, the “deceased” disappeared on May 29, 1998. In May 2005, the beneficiary under a policy of insurance on the deceased’s life brought an application for a declaration that the deceased was presumed dead because of the passage of seven years from his disappearance. The court granted an Order on July 4, 2005 declaring that the deceased “shall be presumed to have died on May 29, 1998.”

The proceeds of the insurance policy were paid to the beneficiary within 30 days of the date that the court made the declaration: July 4, 2005. However, the beneficiary claimed interest from the date of disappearance (ie. the date of death as declared by the court: May 29, 1998).

The Court below and the Court of Appeal both held that no interest was payable until 30 days after the date upon which the declaration of death was made. This declaration was part of the “sufficient evidence” that the insurer required in order to trigger the obligation to pay under the applicable legislation. Until this declaration was made by the court, there was no obligation on the part of the insurer to make the payment.

The legislation in Ontario is essentially similar to the applicable Manitoba legislation considered by the court. In fact, the Court of Appeal of Manitoba relied on an Ontario Divisional Court case directly on point.

Thank you for reading.

Paul Trudelle

In this most unusual case, Bernard's estate will be entitled to receive payment equal to Bernard’s salary until 2012, notwithstanding Bernard's death.

The case turns on the peculiar wording of Bernard's employment agreement with his employer, the Blue Button Club. Pursuant to this agreement, which was entered into on March 1, 2002, Bernard was employed as the Executive Manager of the Club. The agreement had a 10 year term. The agreement described Bernard's duties at the Club. It provided that he was to be paid at least $60,000 per year.

An unusual provision of the employment agreement provided that the Club was to maintain insurance on the life of Bernard, naming the Club as beneficiary, so that the Club could comply with the termination provisions of the agreement. The termination provisions provided that the employment agreement could be terminated in the event that Bernard failed repeatedly and demonstrably to perform his duties, and failed to remedy this problem after receiving reasonable notice; for just cause; or upon his death, in which case, the Club was to collect the insurance proceeds and pay these to Bernard's estate.  Apparently, the Club did not take out such a policy of insurance.

In resisting the claim by Bernard’s estate, the Club argued that, prior to his death, Bernard failed to fill his duties. The court rejected this submission, holding that the Club did not provide the required written warning to Bernard.

The Club also submitted that the agreement was not enforceable, and that neither of the parties expected the agreement to be enforceable. The court easily rejected this submission.

As the agreement clearly contemplated Bernard’s death, it was not frustrated by his death.

The court found that Bernard's estate was entitled to the payments due until the end of the agreement. These damages totalled $410,000.

In this case, the employment agreement was drafted by or on behalf of the Club. The court held the Club to its agreement, notwithstanding its unusual provisions, or the fact that it produced, at least at first blush, an unusual result.

Thank you,
Paul Trudelle

Indeed, an increasingly common estate planning tool is to hold as many assets as possible outside of the estate, primarily as a legitimate means of avoiding estate administration tax (more commonly known as probate fees) and, in certain cases, protection from creditors.

The most common example of such assets that come to mind are Life Insurance, Registered Retirement Saving Plans ("RRSP") or Registered Retirement Income Funds ("RRIF"). Similarly, (and an issue to be considered in future blogs), assets that are jointly held (unless impressed with a trust for the estate) will pass to the surviving joint owner by right of survivorship.

The making and revoking of beneficiary designations are not always simple matters and, regrettably, litigation may ensue where there is uncertainty. Recent caselaw has raised some interesting twists on this developing area of estate litigation.

In Ontario, the provisions of Part III of the Succession Law Reform Act relating to the making of a beneficiary designation are contained in section 51 which reads as follows (within underlining added for emphasis):

s. 51(1) A participant may designate a person to receive a benefit payable under a plan on the participant's death,

(a) by an instrument signed by him or her or signed on his or her behalf by another person in his or her presence and by his or her direction; or (b) by will, and may revoke the designation by either of these methods.

s. 51(2) A designation in a will is effective only if it relates expressly to a plan, either generally or specifically.

The SLRA excludes plans such as RRSPs issued under Part V of the Insurance Act.

An "instrument" is not defined in the Act. The Act does not require that revocation by instrument follow any particular form or formality (Burgess v. Burgess Estate (2000) 52 O.R. (3d) 61.) Accordingly, it is not necessary for a beneficiary designation to be witnessed by two persons as is the case with a Will.

We will consider the revocation of beneficiary designations in tommorrow's blog.

Have a great day, David. --------

The study goes on to examine the current law in Canada and looks at leading policy arguments for and against removing the legal barriers to viatical settlements in Canada. The study also examines in detail the leading Canadian model for law reform drafted in 2001 by Ontario's Financial Services Commission. The last two parts of the study include a review of several issues for reform and a conclusion to the study paper.

The origins of the project arose out of the Program Committee of the British Columbia Law Institute, whereby they identified examining the possibility of legalizing and regulating viatical settlements as an innovative area for legal reform.

After having reviewed the study paper on viatical settlements, it is clear that, while this is an innovative area of legal reform, certainly in the United States, the concept of viatical settlements is a growing trend and one that will no doubt be considered over the next few years as the increase in population puts pressure on the market forces.

Given that viatical settlements are rare in Canada, the study paper looked at the elements of a typical viatical settlement from the United States as providing the reference point. Again, while there are different approaches in the United States, the study notes (at page 3) that one commentator who recently reviewed the American market concluded that the typical viatical settlement contains six steps.

We will look at the six steps in our next blog.

All the best, Suzana and Ian. --------

In the executive summary, the study paper defines a viatical settlement as a transaction in which an insured person with diminished life expectancy transfers the entitlement to receive the death benefit under the policy of insurance to another person. This other person agrees immediately to pay the insured person an amount that is less than the face value of the death benefit and undertakes to pay the premiums for the insurance policy as they come due. A

s is noted in the executive summary, in most Canadian jurisdictions, legislation directed at trafficking in insurance policies (which has its origins in the Depression), renders viatical settlements illegal. There is a small viatical settlement industry based in some of the provinces that lack this legislation. However, in the U.S., the viatical settlement industry has been very active and has, for example, focused on AIDS patients and others suffering from terminal diseases. As such, the viatical settlement industry has expanded considerably.

The aim of the study paper produced by the Canadian Centre for Elder Law Studies was to provide the groundwork for law reform in this area. More on the details of the study in our next blog.

All the best, Suzana and Ian. --------