Becoming an Executor after Death – Hull on Estates #115
Listen to becoming an executor after death.
This week on Hull on Estates, Ian Hull and Suzana Popovic-Montag, discuss becoming an executor after death and three issues that must be addressed immediately.
Becoming an Executor After Death – Hull on Estates Podcast #115
Posted on June 17th, 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 17th, 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 email@example.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 firstname.lastname@example.org.
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.
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