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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This week on Hull on Estate and Succession planning, Ian and Suzana expand on last week's discussion about determining value. They also discuss taking an inventory of an estate's assets and liabilities.

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 our blog.

This week on Hull and Estate and Succession Planning, Ian and Suzana talk about values and appraisals. They specifically look at some of the issues related to assigning value to assets such as jewellery, automobiles, antiques and artwork.

Comments? Send us an email at hullandhull@gmail.com, leave us a message on our blog or give us a call at 206-457-1985.

Determining Value - Hull on Estate and Succession Planning Podcast #101

Posted on February 26^th, 2008 by Hull & Hull LLP

Suzana Popovic-Montag:  Hi, and welcome to Hull on Estate and Succession Planning.  You’re listening to Episode #101 of our podcast on Tuesday, February 26^th, 2008.

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

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

Ian Hull: Hi Suzana.

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

Ian Hull: I’m just great, thanks. I just want to remind anyone who’s interested that we have set up our comment line: 206-457-1985. That’s 206-457-1985.

Suzana Popovic-Montag: And we’ve also got our gmail address for anyone who’d like to send a comment by way of gmail. And that is: hullandhull@gmail.com.

Ian Hull: Terrific. Well, we have the pleasure of making this one a perfect podcast because we’re at 101 and we’re re-recording. For some reason, our last one didn’t catch.

Suzana Popovic-Montag: And that’s a rare occurrence, I can assure you.  Re-recording with Ian Hull.

Ian Hull: So we’ll get it even more perfect this time. But again, great fun being able to leap over the 100 podcast mark and really enjoy doing these podcasts with you. Had a good topic last week which I butchered, no doubt, without you, but we talked about valuation issues. And I tried to focus on the real estate issues in particular. So for today I thought it might be useful to take it that next step and talk about some other issues relating to valuation because my theory is this is actually the cornerstone of any administration and can be the source of many, many problems in a contested environment.

Suzana Popovic-Montag: And I think in terms of starting with the different types of appraisals, we’ll start with my favourite, and that is, jewellery appraisals.

Ian Hull: Yes. And those of you who don’t know, Suzana is an expert in jewellery. If you do see her in person, you’ll notice that instantly.

Suzana Popovic-Montag: I don’t know anything about appraisals though.

Ian Hull: But she knows value. So what about the jewellery appraisals? There seem to be, sort of two aspects of this issue.

Suzana Popovic-Montag: I think what you’re referring to there, Ian, is the fact that the appraisal in terms of the ultimate value of that bequest to whomever it’s ultimately left to at the end of the day.  And then the second side of that would be, of course, the value that’s added to certain jewellery owned by the deceased on the date of death for the purposes of probate tax.

Ian Hull: Absolutely. And I was also thinking of a third, now that you mention it. So I have now three ideas, and the third is, is that the special nature of the asset itself. Like real estate, where you might have a cottage which has got tremendous personal and emotional issues tied to it, real estate is only one aspect of administration that does that, of course.  And another is easily identifiable, certainly in our experience, is jewellery. A piece of jewellery brings with it perhaps the source of great frustration in litigation unfortunately.

Suzana Popovic-Montag: And that’s really because of the sentimental value that can be attributed to a piece of jewellery that may not have a very large financial value to it at the end of the day, but in terms of the sentiment, the emotion behind it can really be a flashpoint during the course of any particular estate administration.

Ian Hull: So like a real estate appraisal, it seems to me worthwhile to really address where your source of the appraisal is coming from. Are you using a reputable jeweller? Or are you using a pawn shop sort of analysis of what it’s worth. And, of course, that brings about the important question as to does it really matter? Does the valuation really matter or is it just a question of allocating this piece to one person and that piece to another person?

Suzana Popovic-Montag: I think just to follow up on that thought, Ian, also many times people will insure jewellery for the purposes of having, you know, the requisite or the appropriate amount of insurance on something. And those appraisals, as we know, tend to be a little bit higher than perhaps the actual value of the piece of jewellery. And so that’s something else that we might want to keep in mind if, as you say, the value actually does matter at the end of the day.

Ian Hull: That’s a good point as well. Really, from my perspective, the inventory of the jewellery itself is so crucial.  And any early steps that can be taken to ensure that you’ve got your assets under control in any estate administration are important, but jewellery can be something that if you lose a ring here or there, can be a big problem for an executor.

Suzana Popovic-Montag: And I know you’ve mentioned in previous podcasts the possibility of videotaping certain things within the home of the deceased and I think that jewellery is one of those key things that you may want to consider actually having pictures of or videotaping because it can be really difficult to identify a gold ring amongst ten of them; some with diamonds, some without, some with other stones. Not that I’m speaking from experience …

Ian Hull: You’re hearing this from the expert, let me tell you. Just looking now how many gold rings she has on. They all look the same to me.

Suzana Popovic-Montag: That’s a man for you.

Ian Hull: Alright, so the jewellery issue is one.  What’s another issue on the appraisal side that we want to think about?

Suzana Popovic-Montag: I would suggest that the automobile appraisals at the end of the day are also quite important.

Ian Hull: That’s for sure, because the automobile itself needs to be dealt with and sometimes it can be a very valuable asset of an estate. Or other cases, it really can be a pain in the neck. I noticed recently an advertisement for a car dealership that says, “We’ll take any car, you don’t have to come buy a car from us, we’ll buy any of your cars off your back”, so to speak, and get that off your list.  And it even says for estates to feel free to call the dealership because we’ll buy your car. And I thought that was a great hook because really, from a standpoint of an executor in most estate administrations, dealing with the car is a bit of a pain in the neck because the value is often, by the time the person has passed away, a modest amount.

Suzana Popovic-Montag: And also, by the time it’s actually administered because there’s always that little bit of a delay from the time of death to the time assets are actually transferred, and of course, we know that cars don’t necessarily, unless they’re collector cars, appreciate over time. Most will depreciate.

Ian Hull: Yeah and that’s right. And this is really one of those assets that is a not… this is like a wasting asset, as opposed to some, you know, for example, if the real estate market’s going up or jewellery becomes more valuable over time, that could be either way on jewellery, but it’s important to really get it and manage it quickly, make sure that the car is insured instantly so if someone does steal it out of the driveway and go for a joyride or something like that, there’s no liability to the estate trustee in that regard. I had an interesting case once where the car was left in the driveway for a year and a half. The oil had leaked out onto a gravel driveway and it created an environmental problem because the oil and gas had been leaking out of the car in a situation where there was no environmental problem. Now it wasn’t huge, they were able to clean it up.  But when they went to sell the house, they had an additional liability that’s just, as I say, it’s something that shouldn’t be taken too lightly and it’s easily administered. So the Courts are not going to be very sympathetic to an executor who hasn’t moved quickly to deal with an automobile because it is so readily marketable and so easily dealt with.

Suzana Popovic-Montag: So Ian, any other things that you think would be important to value at the date of death?

Ian Hull: Well, I think the other two that come to mind anyway are antiques or more globally, just artwork as such.

Suzana Popovic-Montag: And do you find that many estates have either antiques or artworks just as a general rule?

Ian Hull: Well it’s hard to tell. And you’re right, I mean, you don’t see a lot of antiques or artwork that come into an estate of great value. But it falls into the category of jewellery which may become much more important to the individuals because this corner table always sat by mom or this was where dad always smoked his cigars and you had great discussions with or something like that. There’s some emotional value to it as well as the antique value to it. So yeah, I think it’s one of those things that you mentioned earlier, videotape your assets, go through the house, go through the place wherever the assets are…lock it down so that you know where things are. If something goes missing, a painting goes off the wall, I mean it may not be a Van Gogh and you may not have lost a lot in the process of one of the beneficiaries coming over to the house to clean it up and then take the painting with them. But you might have created an emotional issue that you’re underestimating how the other family members will react to and you’ve created new problems for yourself.  Because the obligation as a trustee is from the moment of death, you are charged with control and custody of the assets of the estate. And sometimes you’ll see cases where executors are told by, for example, a trust company or someone will go right in and change the locks quickly to a house. Well it seems to be to a lot of people, people will think, “Oh my gosh, that’s terrible. It seems very draconian, very over the top”. But it really isn’t in most cases because of this onerous obligation to account.

Suzana Popovic-Montag: I think that’s a really good point and just sort of thinking of other assets that might be flashpoints. You know there’s often times like silverware or, you know, other kinds of things that were owned by the deceased that to a third party trustee may have almost no value at all.  But the sentimental value to certain family members can really not, you know, we can’t underestimate that and so the suggestion of taking some kind of picture or video of it seems to be probably the best way to deal with that.

Ian Hull: So just to recap the valuations issue, there’s two main points as far as it seems that we’ve been trying to focus on in the last two podcasts. One is, of course ,what level of valuation do you want undertaken? Do you want a belt and suspenders careful valuation with any of these assets by a qualified valuator and at the Cadillac level, so to speak? Or do you want the sort of drive-by ad hoc valuation because it doesn’t really matter? For example, the jewellery items, there’s twenty of them, they’re all relatively modest in value and you don’t want to go to the expense of incurring it. Those are the kinds of considerations you need to look at, I think, from the starting point on the valuation.  And then the second part of valuations is, as you say, making sure you get control and custody of all the assets so that you are indeed valuing the assets as of the date of death in a professional way, in a way that no one can criticize you for having messed up on.

Suzana Popovic-Montag: Well that’s great Ian. I think that sort of wraps it up for today anyways. And so I just wanted to remind anyone who’s listening, if they would like to send us some comments, they can certainly feel free to call us at 206-457-1985 or send us an e-mail at hullandhull@gmail.com. That’s hull, h-u-l-l-a-n-d-h-u-l-l @gmail.com. And, of course, you can feel free to visit our blog which is at www.estatelaw.hullandhull.com. Thanks again, Ian.

Ian Hull: Thanks Suzana.

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

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

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

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