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Listen to Pre-probate Checklist

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Suzana Popovic-Montag: Oh did you?

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

Suzana Popovic-Montag: That’s even better!

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Listen to Estate Administration

This week on Hull on Estate and Succession Planning, Ian and Suzana continue their discussion on what to expect in the early stages of estate administration.

Estate Administration - Hull on Estate and Succession Planning Podcast #94

Posted on January 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 #94 of our podcast on Tuesday, January 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.

Ian Hull:  How are you doing?

Suzana Popovic-Montag:  I’m well, thank you.  How are you?

Ian Hull:  I’m good.  The holidays seem like a long time ago now.

Suzana Popovic-Montag:  Way too long.

Ian Hull:  They were way too short and it feels like they didn’t even happen.  But that’s okay.  We’re into a new year and having a great time moving through what is our mini series on what to expect, bringing some life to an estate administration.  So our last podcast we had some fun talking about this pre-probate stage.  And I think it’s worthwhile.  You were saying before as we were preparing for our podcast it would be worthwhile staying in this pre-probate stage because there are so many other issues that we could talk about before we get the fancy seal on the Court file.  And a lot of these issues are issues that can be dealt with on a homework basis, as you’ve described them and so have I.  So let’s talk about again where sort of we left off in our last podcast talking about what you called were testate estates or situations where there is a Will itself.  So let’s stay in that pre-probate framework and talk about that.

Suzana Popovic-Montag:  You know, one thing I wanted to mention, Ian, in terms of that is normally we have a situation where there’s a formal Will, a Will that’s been prepared by a lawyer . But that doesn’t mean that a hand-written Will prepared by the deceased and signed by him or her is not as equally a valid document.  And I know you talked about witness requirements and things like that during our last podcast.  But there are different requirements and rules that govern hand-written Wills, but they are equally effective at law.

Ian Hull:  Good point.  And we haven’t talked about that at all.  We’re sort of focusing on the conventional scenario but we can’t forget that less conventional scenario.  So why don’t we talk a bit about situations where you’re applying with a Will.  And you’ve got a fairly conventional scenario, or unconventional scenario - typewritten or hand-written.  One of the questions you’re going to be asked, and a bit of homework you can do, is get the details of who are all the estate trustees named in the Will that you have or you know about.  Are they alive?  Are they able?  Are they willing and competent to act?  Those kinds of details of where their addresses are, contact numbers and so forth.  This is just a good little homework exercise to follow through.

Suzana Popovic-Montag:  And another thing that you might want to consider is whether or not, and we’ve talked about these on previous podcasts, whether spouses are making elections under the Family Law Act for instance.  And if that’s the case, then there is case law that suggests that the Will is to be read as though that person has predeceased the deceased.  And so they won’t be entitled to be the executor of the estate and they won’t necessarily be entitled to gifts in the Will, as a general rule.

Ian Hull:  And you have, as usual, understated the importance of the case law because you did the Factum on the leading case on that issue.  And Reid vs Reid-Martin stands for that proposition that yes indeed, the surviving spouse has some problems acting as the estate trustee.

In terms of, you know, I guess another little detail point is you will need legal names of the estate trustees, addresses, occupations - you always have to note that in the probate application.  Other little details - you’ll want to get SIN numbers and dates of birth because sometimes they’re going to need that to open estate bank accounts.

Suzana Popovic-Montag:  I think you’ll also want to consider whether or not this is a situation where some of the named estate trustees may want to renounce.  And that’s the situation where someone decides I may be named, but I don’t necessarily want the job.  And in that case, they have to sign a formal document actually renouncing the appointment so that the other named estate trustees would have the authority to then continue with the administration.

Ian Hull:  Now that’s a very good point.  Alright, we’ve talked about situations where there is a Will.  Let’s turn now to situations where there is no Will, where we’ve got intestate estates, where you have to turn to the legislation in the different commonwealth jurisdictions that deal with situations where essentially the government tells you how the estate is going to be distributed.

Suzana Popovic-Montag:  And generally speaking, in those situations I think it’s usually the situation where you’re going to have that estate pass on to the next-of-kin, however that next-of-kin is actually defined.  And so the closest living relatives will be the ones who are, at first blush, going to be entitled to the estate.

Ian Hull:  So this is where I say you can do some of the most effective homework because this isn’t time you want to waste a lot with a professional across the table at hourly rates.  This is complex stuff that a professional is going to want to know almost to a level of detail that may seem almost irritating to the client.  And the reason why is, is that you used that term “next-of-kin”.  The term “next-of-kin” is a broadly defined term and one that…I mean, you’ve defined it perfectly…but one that has to be determined with great precision.  You have to make sure you don’t miss one possible next-of-kin or class of next-of-kin.  So to do that, you’re going to need some major information.

Suzana Popovic-Montag:  And you start, of course, with full legal names of all the family members that you know of, their addresses, their actual relationship to the deceased and their respective dates of birth.

Ian Hull:  And I will often just say to the client before they come to see me, listen, put together as best you can a family tree.  Show me where and when people were around and what sort of lineage, how it works.  So that you can start to get a bit of a visual as to what is going on, because the lawyer is going to be the one to fill in the blanks per se.  Now just because this is a bit of a complex area, at this point, let’s just talk a little bit about what happens when it’s not a straightforward situation.  Where the next-of-kin are a bit more distant.  Well, for example, you have situation where an elderly couple is married for 50 years, they have no children.  They have brothers and sisters but they never had kids.  And the brothers and sisters have kids.  So you’ve got different generations sort of swirling around.  And depending on who died first, and so on, who are the next-of-kin and so on.  What we’ll often do in situations were there is some uncertainty is we’ll hire a good trace or heir searcher to help us fill in the blanks.  And these people are fascinating.  Some of them they will go to cemeteries to chase down information, look at headstones, back it up and so forth.  And I guess what some…and some people might have heard of…are heir searchers who are not quite so clean in that sense that they usually will want a big piece of the action once they find these heirs, from the estate.  And what will happen is, is that for example if there is someone in England who is a beneficiary, a long lost beneficiary.  And so some of these heir search firms will take a fee, a fixed fee, a reasonable contingency fee or not so reasonable contingency fee.  We’ve seen some tremendous fees that come out, you know, which are just outrageous at some level.  But there are some really terrific heir searchers.  They’re needed.  They have a skill search that is unbelievable…what they can.

Suzana Popovic-Montag: It really is, Ian.  It really…I’m always astounded by the fact that they’ve got resources at their hands that we wouldn’t even necessarily expect.  And notwithstanding the fact that sometimes they can be very expensive, the truth is that estate trustees have a duty in these circumstances to locate family members, to locate the people who are entitled to the estate, to distribution of the estate.  And you don’t want a situation where you’ve possibly paid out the estate to the wrong family members.  And so it’s sort of a cost of doing business.  I know it sounds kind of crude but it is the term that we use when we say to the clients who are trying to administer these estates that it’s really, really important that this job be done properly.

Ian Hull:  And now, chasing down blood relatives is an expertise that these guys have.  The other expertise that we have, as lay people, that we need to employ in all this, is that you need to ascertain the nature of the relationships that the deceased entered into during his or her lifetime.  Not just the typical “I got a brother or a sister” or something like that, or a second cousin.  You want to make sure that we’ve nailed down all the relationships.  Say, twenty years ago, they had a relationship that you know about.  Maybe there were children out of that relationship you need to investigate.  There may be expanded relationships and situations where you have common-law spouses, where you have same sex spouses.  All of these matter for the different types of claims that can be made against the assets of the estate.  They may not be what we called “heirs at law” but they may be obvious claimants.  So it’s worth making the extra effort at the outset and ultimately if you don’t have the resources or the information, you can get your professionals to help you seek out these people and so forth.  But that is an important early step.

We don’t want to forget that, certainly in Canada, the nature of the relationship is crucial if you are a married spouse or you are not a married spouse as well.  Because you have special entitlements as a married spouse and you have other special entitlements if you’re a common-law spouse.  Different types of claims.  There are what we call the preferential share you would get if you were in a married spousal situation.  For the common-law, it’s different and the type of claim there is differently structured.  It’s structured by a dependants’ relief claim or something of that nature as opposed to what the statutes allow for as a preferential share in the claim.  So anyway, we don’t want to get in too deep on the claims side.  But it just shows you, it illustrates why this is important to chase down this information.  And we’re not suggesting this because we want to add work to the process or add layers of complexity.  We’re suggesting it because we want to solve problems at the outset.

Suzana Popovic-Montag:  And just to sort of tie this podcast up, Ian, I think another thing we want to keep in mind is the fact that we also have to determine whether or not there are any children born outside of the marriage.  And that matters for the same kinds of reasons in terms of the distributive share that people will be entitled to on an intestacy.

Ian Hull:  Absolutely.  I forgot about that.  So that’s very helpful.  Alright, so I think that’s a good start.  We will continue to work through this pre-probate stage and the homework and the preparation for our ultimate goal, and that is, to administer the perfect estate.  So we’re looking forward to many more talks and discussions about this in the year of ’08.  And the neat thing about ’08 is, we hope to hit 100 podcasts in ’08.  So that’s going to be an exciting day, probably not as exciting for everyone else, but you and I.  It will be a neat day to hit.  I don’t know how much celebration there will be involved.  It certainly won’t be champagne because we typically podcast early in the morning.  So we’ll try not to drink before noon in ’08.  That’s my new rule.

Suzana Popovic-Montag:  Well, thanks very much Ian.  And I do look forward to our next podcast.

Ian Hull:  Thanks a lot.  We’ll see 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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Listen to The Process of Administering an Estate

This week on Hull on Estate and Succession Planning, Ian and Suzana  talk about the first, pre-probate stages of administering an estate.