Tag: administration of estate
As Ian Hull and Daniel Enright of our office blogged last week, as of April 1, 2021, small estates in Ontario will be defined as those worth $150,000.00, instead of the $50,000.00 figure we are all used to.
The Ontario Attorney General, Doug Downey, advised that the process of applying to manage an estate in Ontario was the same, whether it is worth $10,000.00 or $10 million, which often deters people from claiming smaller estates.
As a result of this change, more estates will be able to access a simplified probate process, though the amount of probate fees payable will not change.
Although these changes are welcome, some consider that there are still a number of other issues outstanding, such as:
- Due to real estate values, estates in Toronto could be considered small, whereas that would not be the case in other parts of the province (e.g. a $500,000.00 estate in Toronto could be considered small); and
- The probate process itself could be simplified, as many financial institutions take the position that assets cannot be managed until such time as probate is obtained (which in turn can often cost an estate, as asset values fluctuate).
A recent article discussing the above-noted points can be found here.
It will certainly be interesting to see if the new changes will make a difference, and whether more changes are coming, in light of the concerns expressed by various members of the legal profession.
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Sir Terry Pratchett was a noted author and activist. His genre was fantasy, and more than 85 million copies of his books have been sold. He was most noted for his Discworld series of 41 novels.
Sir Terry Pratchett died on March 12, 2015 at the age of 66 as a result of early-onset Alzheimer’s disease (which he referred to as an “embuggerance”). Prior to his death, he was a vocal supporter of Alzheimer’s research and assisted suicide.
Pratchett left a significant number of unfinished works upon his death. These works will never be enjoyed. Pratchett’s daughter, the custodian of the Discworld franchise, has stated that these works will never be published.
More definitively, Pratchett told his friend and collaborator, Neil Gaiman, that he wanted whatever he was working on at the time of his death to be destroyed. More specifically, he asked that his works and computers be put in the middle of the road and run over by a steamroller.
This wish was fulfilled on August 25, 2017. His hard drive was crushed by a vintage John Fowler & Co. steamroller named Lord Jericho at the Great Dorset Steam Fair. The destroyed hard drive was put on display at The Salisbury Museum
Presumably, the destruction was agreed to by his estate trustees. Otherwise, the works would fall into his estate to be dealt with as assets of the estate.
The wishes of authors with respect to their posthumous works are not always fulfilled. Notably, Franz Kafka asked his friend and literary executor Max Brod to destroy all of his works after he died. Brod ignored this request, and as a result, some of Kafka’s most famous works, The Trial, The Castle, Amerika and The Metamorphosis were published after his death. In an essay by Scott McLemee, it is noted that Kafka was a lawyer, and must have known that his intentions set out in a couple of notes would not be binding on his estate trustee.
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For all that is known about chef Anthony Bourdain’s colourful lifestyle, the estate plan he left behind is surprisingly comprehensive.
Bourdain’s Will leaves the residue of his estate to his minor daughter, Ariane. The residue has been valued at approximately $1.2 million, and consists of savings, cash, brokerage accounts, personal property, and intangible property including royalties and residuals. In the event that Bourdain survived his daughter, the residue was to pass to his daughter’s nanny.
Bourdain appointed his estranged wife as estate trustee. This makes sense given that Ariane is the daughter of the marriage and that the mother will likely have her daughter’s best interests in mind while the estate is administered. Bourdain was also mindful to include in his Will other assets – personal and household effects, including frequent flyer miles. Given the amount of travelling Bourdain did, it was shrewd of him to specifically include this in his Will.
A separate trust was also settled, apparently containing most of his wealth. Again, his estranged wife is named as trustee, with Ariane as beneficiary receiving money from the trust when she turns 25, 30, and 35. Presumably, Bourdain settled a trust to avoid the payment of taxes and the publicity associated with probate – another sign of a well thought out estate plan.
While so many celebrities succumb to poor estate planning, it is refreshing that in addition to teaching us about cooking, travelling, eating, and so much more, Bourdain also taught us about the importance of a thorough estate plan.
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Robert Gordon Price began the practice of law in the small northern Ontario mining community of Kirkland Lake in 1952 when he joined his uncle Bruce Williams, and the Williams and Price law firm had its beginning. Bob, as he was known to friends and colleagues would practice law for over 65 years until his passing in Toronto on November 26, 2017 at the age of 92.
In or around the time Bob began practicing law, the International Law Commission began working on the issue of diplomatic and consular relations. After more than ten years of international preparations and after a discussion on the draft articles, countries proceeded to a Conference on Consular Relations, which was attended by delegates of 95 states. The Conference adopted the Vienna Convention on Consular Relations which was signed on 24 April 1963 and came into force on 19 March 1967. Article 37 provides that a country must “without delay” notify consular officers if a person dies while away in another country or has a guardian or trustee appointed over him or her. From this, certain international obligations would flow.
Around the same time, a miner, who was originally from Poland, died in Kirkland Lake. He died without a Will and his family in Poland had to be identified, located, and contacted. Arrangements were made in regard to the funeral, the body, and the estate. No one was quite sure how to proceed given the new treaty obligations, but the Polish Ambassador was put in contact with Bob. For Bob, it was a beginning of a niche law practice on international estates inheritance and heir locate in over 15 countries. Bob soon developed a practice where he was involved with almost all estates in Canada with a connection to Eastern Europe and the Soviet Union.
Part of Bob’s legacy are the international relationships that he built over many years. As international relations between countries continue to evolve and change, the relationships Bob established are even more important today.
Today, Hull & Hull LLP is working with Bob’s former colleagues around the world by assisting clients in solving complex and difficult problems involving international estate inheritance matters.
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Last week we blogged on limited grants in the event that the executor is located out of the jurisdiction. There are two other types of limited grants to consider: grants where an original will or codicil is unavailable and administration durante animi vitio. Furthermore, it is important to consider making alterations in grants in the case of an error.
A limited grant may be necessary where an original testamentary document is unavailable or if there will be a delay in the production of certain codicils. The grant may be limited until the time when the original or the codicils are produced. This grant will allow an individual to act as administrator of the estate until such documents can be located. If the original will is with somebody abroad who is unwilling to produce it, it is possible to grant probate pending the receipt of the original. In a case of urgency, it is possible that a copy of an original will may be admitted, limited until the original arrives. If a copy is admitted, an individual must apply to the court by an order for directions under Rule 75.06 of the Rules of Civil Procedure.
Another type of limited grant is administration durante animi vitio, roughly translated as “administration for the use and benefit of a person under a disability”. If a person entitled to a grant of administration was of unsound mind at the time of the deceased’s death, or became of unsound mind after receiving the grant, administration for his or her use and benefit would be granted to someone else until the individual returned to sound mind. If a sole executor or administrator becomes incapacitated through mental or physical illness, the grant can be revoked and administration can be granted to his or her guardian.
If a certificate of appointment has been issued, but there is a defect in the document, it is important to alter or amend the document. If an error is a bona fide mistake and is not of significant importance to require the revocation of the grant, the amendments may be made based on satisfactory evidence. These types of amendments include minor details such as the name of the executor, or the date of death. This will result in the execution of a new bond. When an error is discovered, an affidavit should be filed confirming the mistake on the original and attesting to the correction, and the registrar will then make any changes required. If property is discovered after the grant of probate or administration and was not originally included in the application, the executor or administrator must deliver a true statement of the property verified by oath to the registrar in Ontario. This may result in the individual having to pay an increased surety to account for the extra value of property.
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An estate trustee’s duties in administering an estate include, among other things, the distribution of all estate assets in accordance with the terms of the Will or the rules of intestacy in the event there is no Will. However, in order to make such a distribution, the estate trustee will be required to identify any and all beneficiaries rightfully entitled to a share of the estate.
For most estates, this is often a simple and routine task. However, where the deceased has a large extended family, complications may arise in both determining and locating beneficiaries, particularly, in circumstances where the deceased dies without a Will.
An estate trustee must make “reasonable inquiries” to identify beneficiaries. Unfortunately, there is no statutory definition for what constitutes reasonable inquiries. What is considered reasonable will depend on the particular circumstances of the estate. However, this may include speaking with family, friends and neighbours of the deceased, searching through the deceased’s personal effects and papers for the beneficiary’s contact details or conducting searches using online search engines such as Canada.411, www.cyndislist.com; www.rootsweb.com; www.ancestry.com and www.jewishgen.org.
Often, estate trustees will hire a professional researcher or a genealogist to assist them in locating a missing beneficiary. Such professional researchers often have access to databases that are not available to the general public. The Archives of Ontario can provide a list of accredited researchers both in Canada and internationally. The International Commission for the Accreditation of Professional Genealogists also maintains a database on their website which can be accessed here.
Despite such reasonable efforts, an estate trustee may still be unable to locate a beneficiary or may have concerns that not all possible heirs have been ascertained. If the estate trustee wishes to proceed with the administration in such circumstances, he/she will need to bring an Application for the advice and direction of the Court and swear an affidavit in which he/she outlines the efforts taken to locate the missing beneficiaries. This affidavit must be filed with the Court on notice to the Office of the Public Guardian and Trustee. As such, it is important for an estate trustee to document any and all steps taken to locate a missing beneficiary, and if an expert is retained, obtain a copy of his/her search efforts as well.
On hearing the Application, the Court may require that the estate trustee take additional steps, or that a period of time passes to ensure that the missing beneficiaries will not come forward at a later time.
Thank you for reading.