Estate Administration – Part 2 – Hull on Estates and Succession Planning #211
Listen to: Estate Administration – Part 2
This week on Hull on Estates and Succession Planning, Ian and Suzana continue their discussion on estate administration. Specifically, they examine what would happen if one did not have an affidavit of execution during an estate administration.
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Ian M. Hull – Click here for more information on Ian Hull.
Suzana Popovic-Montag – Click here for more information on Suzana Popovic-Montag.
Welcome to Hull on Estate and Succession Planning, a series of podcasts hosted by Ian Hull and Suzana Popovic-Montag. The podcast you’re listening to will provide information and insights into estate planning in Canada. From the offices of Hull & Hull in Toronto, here are Ian and Suzana.
Suzana Popovic-Montag: Hi and welcome to Hull on Estate and Succession Planning. You’re listening to episode 211 of our podcast.
Hi there, Ian.
Ian Hull: Hi Suzana.
Suzana Popovic-Montag: How are you today?
Ian Hull: I’m good. How about you?
Suzana Popovic-Montag: I’m good, thank you. You always stumble on that one, don’t you?
Ian Hull: I do. It’s a pressing concern of mine always.
Suzana Popovic-Montag: I’m sure it is.
Ian Hull: Alright, let’s move on to our podcast. Our mini-series on administration and estate administration, and the kinds of things you can expect should you have the joy of administering an estate.
Suzana Popovic-Montag: And we started with a little bit of the background and a fact scenario in the last podcast and we set up a situation where we’ve got someone whose going to see a lawyer with a Will in hand, and wondering what it is that an estate administration actually entails.
Ian Hull: And we have that person is there on behalf of his uncle, which has just passed away. So we’ll try to dovetail that fact scenario into all this. Alright, we talked…at the end of it, we finished up saying okay, after getting the core information then let’s make sure we’ve got the vital information of what Wills matter or what Codicils exist and so forth.
Suzana Popovic-Montag: And one of the things that we just wanted to add to that was the fact that when you apply for probate and you take this document to the Court for validation, one of the things that you’re required to provide is an Affidavit of Execution. And that Affidavit is an Affidavit that’s sworn by the witness to the Will saying I was there, I saw the document signed and it was signed properly essentially. And that document is really important to the Court and hopefully something that you’ll find with the Will when you go through that whole process.
Now I just thought we might take a few minutes and just talk about what happens if you don’t have that. If you don’t have that Affidavit of Execution what then do you have to do?
Ian Hull: Well, I’ll look to you to answer that. Because I know what I would do. I’d run out of the room crying – no I’m just kidding. But seriously though, what do we do if we don’t have the Affidavit of Execution?
Suzana Popovic-Montag: Well in that case what we’re gonna do is we’re gonna have to actually locate one of the witnesses to the Will and have them swear an Affidavit along the same kind of lines to the effect that they were present when the testator signed the Will, that they signed at the same time in the presence of the other witness and the testator at the same time. And then that document will be filed with the probate application with the Court.
Ian Hull: And then one layer more is that if you can’t find the witnesses, what do we do? And that’s where we get what we call a banker’s Affidavit or an Affidavit from someone who can verify the signature of the deceased.
Suzana Popovic-Montag: Right.
Ian Hull: And that’s sort of like the last tier down although there’s more tiers down but we won’t get into every doomsday scenario. But that’s another way that we can chase down that information. And what’s important, why it’s so vital is of course in Ontario…not every province though, of course…but in Ontario, we have such strict requirements for execution that this document, this Affidavit of Execution, becomes a vital, almost deal breaker document. Certainly a deal breaker document to get probate.
Suzana Popovic-Montag: That’s right.
Ian Hull: Okay, so we’ve got our Will, we’ve got no Codicil. We’ve asked and there are no Codicils, no handwritten notes. We open the page up, the first page and start reading. And what are the some of the issues that start to concern us?
Suzana Popovic-Montag: Well, first of all, we want to see what the executor appointment actually provides, whether it applies to specifically that individual who’s sitting across from you, or that individual jointly with someone else or jointly and severally with someone else. And so we want to make sure that you’re dealing with the person who actually has the authority as they’re named in the Will.
Ian Hull: Alright. And the question of course ties into who the individual is and in our scenario the nephew has come to see us. The uncle has died and the nephew lives…let’s just add another layer to the facts…the nephew lives in Florida.
Suzana Popovic-Montag: And so another part of the fact-finding process is to get all the specifics about that individual. So we’ll need his occupation, his place of residence, the address, contact information, phone numbers, that kind of information is really going to be important for the probate application.
Ian Hull: And in your last podcast, you mentioned the fact that we’ve got to track down names of beneficiaries, ages, dates of birth and contact information, again hoping that our client has come with that. If not, we’re gonna send them back to pick up the pieces in that regard.
Suzana Popovic-Montag: That’s right. And one of the easy things, of course, is to identify the minors because we all know that at certain age in whatever jurisdiction, they’re going to be qualifying as minors or as adults if they’re over that age limit. A more difficult thing that we have to press with our executors is capacity issues because we’ve got requirements, certainly here in Ontario, that if a beneficiary is not capable within the meaning of our legislation, then we have to serve the Public Guardian & Trustee’s office, or similar government agency on behalf of that incapable person in other jurisdictions.
Ian Hull: That’s a really good point. When you’re pulling the information out of your client for just what you think is basically clerical, you know, contact information, we have to remind ourselves that we’ve got to dig down a little bit and just find out, okay are there issues of capacity, are there issues of there being minor children and things like that. Are they 17, are they 16? And you know, put your mind to it, just so that we can make sure that the ultimate goal of a smooth application for probate goes through without any glitches.
Suzana Popovic-Montag: That’s right.
Ian Hull: Alright. The other thing is, of course, in terms of the administration. And when you ask for this information or not is up to the individual lawyer but sometimes I like to press at this point, too, is that once I’ve got the core Will and Codicil or not Codicil in our case, I like to also press in terms of who was, if anyone, a Power of Attorney for the individual before they died.
Suzana Popovic-Montag: And why do you do that, Ian?
Ian Hull: Well, I mean, the truth is that as executor, you’re charged with the obligation instantly on the moment of death to bring in the assets of the estate, pay the liabilities and distribute. One of the problems that can arise is if someone else was the Power of Attorney and they have basically been the executor for the deceased for whatever period of time. You have to co-operate and you want to co-operate legally. But you have to co-operate in terms of the transition, the flow of information, so that you’re dealing with the starting balance that is accurate from your administration forward.
Suzana Popovic-Montag: And as part of that process, there’s really two options. And one is that you can compel that Power of Attorney to pass their accounts so that you’ve got the sanction of a Court Order saying that this is the starting balance for you as the executor picking up the end of the administration of the attorney. Or you can try to do that on a consensual basis provided that you have the consent of everyone with an interest in the estate who is capable and of age.
Ian Hull: And that is often the case. Most of the time you’re able to sort of smoothly transition the good work of the Power of Attorney into the estate and then at the end of your estate administration steps, you’re able to get a release from the beneficiaries who will say, look you did a fine job bringing the assets in, including the assets that were under administration by the Power of Attorney.
Suzana Popovic-Montag: That’s right.
Ian Hull: Alright. So we’ve got ourselves in a good starting point. What’s another twist ,once we’re reading through the Will that we want to, in terms of information gathering, that we can do and maybe the client won’t do but we may have to do our own digging on?
Suzana Popovic-Montag: Well in many cases we’ll see gifts that are made to charities or charitable organizations. And unfortunately many times too we’ll see improperly named or not as carefully named institutions or charities as we might like. And so to the extent that we can get information from the executor about who the ultimate intended recipient of that gift is, that will certainly help us to determine who it is that was meant when they have an improperly named organization.
Ian Hull: And we talk a lot about that in some of our previous podcasts about what we can do when we have a name that isn’t correct and what the steps are taken under the Cy-pres rules and so on. In Ontario, we have a very streamlined process that we’ve been able to create statutorily so we’re able to fix some of the typos or the wrongly named charities fairly quickly.
Alright, well look, before we wrap up then, we’ve got really our ducks in order to the starting point. But, of course, we haven’t even begun the important thing, and that is how much is involved, and what’s going where? So the estate assets and bringing in the assets we’ll talk about in our next podcast.
Suzana Popovic-Montag: Great. Thanks very much, Ian.
Ian Hull: Thank you.
You have been listening to Hull on Estate and Succession Planning by Ian
Hull and Suzana Popovic-Montag. The podcast that you have been listening
to has been provided as an information service. It is a summary of current
issues in estates and estate planning. It is not legal advice and you are reminded to always speak with a legal professional regarding your specific circumstance.
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