Tag: Public Guardian and Trustee
Thousands of individuals have unclaimed funds waiting for them in inactive credit union accounts, as well as unpaid wages, overpayments to debt collectors, proceeds from courts, pension funds, estates and real estate deposits in British Columbia. The British Columbia Unclaimed Property Society (BCUPS), whose mission is to put unclaimed money back in the hands of rightful owners, returned $1,035,932 last year in forgotten funds.
BCUPS holds unclaimed property as the custodian for rightful owners. The Society maintains a free online database where people can search to see if they have any unclaimed money waiting for them. Individuals can claim the funds by completing a verification process. There is no limitation period to claim funds and no cost for BCUPS’s services. BCUPS also works with companies and organizations to help get dormant assets off their books. In 2020, BCUPS received $4,858,925 in unclaimed funds from the courts, the Public Guardian and Trustee of British Columbia, credit unions, insurance companies, various levels of government, companies in liquidation, among other organizations.
Technically, an account is deemed dormant when a prescribed period of time has transpired with no activity, from a year to 10 years, depending on the type of account involved. Under BC law, credit unions, debt collection agencies, real estate agencies, companies in liquidation, municipal and provincial courts and municipalities, which are classified as mandatory holders, are required to make a “reasonable effort” to identify forgotten account holders before transferring these funds to BCUPS. Other organizations holding trust funds, insurance policies, brokerage accounts and closed pension plans are encouraged to voluntarily transfer their unclaimed property accounts to BCUPS if the rightful owners cannot be located.
British Columbia is the only jurisdiction in North America that has set up a not-for-profit society to administer its unclaimed property program where a portion of funds are transferred to charity.
Unclaimed Property in British Columbia by the Numbers:
$148,933,709 – Total amount of money sitting in dormant accounts waiting to be claimed.
$4,858,925 – Amount of unclaimed funds BCUPS received from financial institutions, companies and organizations in 2020.
$1,035,932 – Amount of money returned to verified claimants in 2020.
$106,789,525 – Total amount of money from dormant accounts BCUPS has received since its inception on April 1, 2003.
$18,514,588 – Amount of money from dormant accounts BCUPS has returned to rightful owners since its inception.
$48.4 Million – Funds BCUPS has transferred to Vancouver Foundation for charitable purposes since its inception.
$1.01 Million – Largest amount claimed. An outstanding estate claimed in July 2019.
$1.9 Million – Largest dormant account in BC waiting to be claimed.
The above information was taken from the British Columbia Unclaimed Property Society (BCUPS) website.
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In the Estate of Oliver (Re Oliver Estate, 2021 ONSC 2751) decision on April 12, 2021, the applicant, who was treated as a stepdaughter by the deceased, had her motion seeking appointment as Estate Trustee dismissed. William Oliver died intestate on July 14, 2020, and had no spouse, children, parents, siblings, nieces or nephews survive him. The applicant was the daughter of the person with whom the deceased cohabited in a common-law relationship in the 1980s and she had remained close to him, even being appointed attorney for him on a TD bank account in 2017.
Justice Macleod found that the daughter of a partner with whom the deceased co-habited, does not fall within any class of person recognized as an heir on an intestacy pursuant to the Succession Law Reform Act, RSO 1990 and Letters of Administration could not be issued under the Act. It was possible to make an order appointing the applicant as administrator of the property of the deceased under s. 29 (3) of the Estates Act, RSO 1990. Instead however, the court referred the matter to the Public Guardian and Trustee to investigate. Such investigative authority can be found in the Crown Administration of Estates Act, RSO 1990 where the “Public Guardian and Trustee is authorized to, (a) identify and locate, (i) persons who may have an interest in the estate, and (ii) other persons, but only for the purpose of locating persons who may have an interest in the estate; and (b) identify the estate’s assets.”
The court can refer a matter to, but cannot order the Public Guardian and Trustee to be appointed as a result of the provisions of Public Guardian and Trustee Act RSO 1990, where, “The Public Guardian and Trustee shall not be appointed as a trustee, by a court or otherwise, without his or her consent in writing”. Given staffing issues and limited resources as well as pandemic restrictions it is perhaps not entirely moot to ask what happens to the estate if the Public Guardian and Trustee does not consent to be appointed Trustee in a case like this.
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You are the Estate Trustee of an estate in which the testator left a substantial portion of the residue to certain specifically named charities. The charities who are named as beneficiaries are well established large charitable organizations whom you have corresponded with directly. Such charities have retained counsel to represent them concerning their interests in the estate, and such counsel have in turn requested that you commence an Application to Pass Accounts regarding your administration of the estate.
In preparing the Application to Pass Accounts you turn your mind to who you should serve with the Application. Rule 74.18(3) of the Rules of Civil Procedure provides that an Application to Pass Accounts shall be served on “each person who has a contingent or vested interest in the estate“.
Although you are aware of the general supervisory role that the Office of the Public Guardian and Trustee (the “PGT”) has over charities in the Province of Ontario, as the charities in this instance are well established and represented by counsel, you question whether you need to serve the PGT in addition to the charities with the Application to Pass Accounts. It is, after all, the charities themselves who have a “contingent or vested interest in the estate“, and as the PGT and the charities would be representing the same financial interest you question whether it is necessary.
The requirement to serve the PGT with any Application to Pass Accounts where a charitable bequest is involved is established by section 49(8) of the Estates Act, which provides:
“Where by the terms of a will or other instrument in writing under which such an executor, administrator or trustee acts, real or personal property or any right or interest therein, or proceeds therefrom have heretofore been given, or are hereafter to be vested in any person, executor, administrator or trustee for any religious, educational, charitable or other purpose, or are to be applied by them to or for any such purpose, notice of taking the accounts shall be served upon the Public Guardian and Trustee.” [emphasis added]
The requirement to serve the PGT with any Application to Pass Accounts when a charitable bequest is involved as established by section 49(8) of the Estates Act exists in addition to the general requirement to serve all individuals with a “contingent or vested interest” as established by rule 74.18(3). To this respect, when a Will leaves a bequest to a specifically named charity, the Application to Pass Accounts must be served upon the specifically named charity as well as the PGT. Although from a practical standpoint the PGT’s active participation in an Application to Pass Accounts where a charity is representing itself is unlikely, with the PGT deferring to the charity to protect their own interest, the service requirements remain nonetheless, and both entities could in theory participate in the Application to Pass Accounts, and both could in theory file separate Notices of Objection to Accounts.
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This week on Hull on Estates, David Smith and Lisa Haseley discuss a recent decision of the British Columbia Supreme Court, Rosinski v British Columbia (Public Guardian and Trustee), 2016 BCSC 1204
Click here for more information on Lisa Haseley.