This blog has been written by Sandra Arsenault, Law Clerk at Fasken LLP.

A Season of Beginnings, Endings, and Books

As the leaves change and the weather cools, I imagine curling up in a cozy spot with a hot beverage and a new book. Autumn is when we salute the end of summer and greet a crisp new season. For some, this time marks a new year and a new beginning. To those who celebrate, Shana tova. May you be inscribed in the Book of Life. The following is an inspired analogy and nothing more.

The Trilogy

If life and death is our story, I see it as a trilogy. The Prequel (Book 1) would be the family history, the events and stories leading to the circumstances of our birth. A “How I met your mother,” if you will. The Book of Life (Book 2) ends with the final chapter being the death of our beloved protagonist. The third and final book (Book 3), which begins after life has ended is written by your executor. This book has a different tone, the writer is new, the main character is no longer present, but the storyline continues. A sample chapter outline, I imagine, would be something like this.

The Book of (After) Life – Estate Administration

Chapter 1: The News

The third book begins with receiving the news of the death.  Our succeeding author knows, believes or may just be learning that he or she is appointed as executor, or he or she may be next of kin.

Chapter 2: A Flurry of Activity

At this introductory stage, initial responsibilities could include arranging the funeral, locating a Will, Codicil, Memorandum/Letter of Wishes or other instructions, notifying friends and family, publishing an obituary. This preliminary work can be done while we still are unsure who the main character (Executor) will be.  What if there are kids, pets, a house, a business? Are there expenses that need to be paid now? Step right up (temporarily) and save the day. But beware of overstepping beyond these basic duties until you are ready to commit, or you may find yourself in the role of reluctant hero.

Chapter 3: To Be or Not To Be, That is the Question

This short chapter is about consideration of the journey ahead. The point of view shifts to you as Executor and primary storyteller. You need to investigate whether the estate has money to cover all of the debts. It’s time to foreshadow assets, liabilities and possible villains. Who are the other characters? Do they get along? Is this a drama? Do you have the time and energy to commit? Is it a short story with relatively few plot twists? Or will it be a massive tome, the equivalent of War and Peace? If you do not accept this quest, is there someone who will? Is there a moral obligation (an unwritten expectation) that you will administer this estate out of love and respect for the deceased? Is this a collaboration, meaning, will there be co-executors setting forth upon this adventure with you? If so, will they be your helpful sidekick or your saboteur?

Chapter 4: The Usual Suspects

You’ve signed the contract on the dotted line, and you are ready to start (BTW: there is no actual requirement for written confirmation to act as an executor of a Will). We are ready to meet or become reacquainted with the other characters which often include: the Beneficiaries; the  Professionals – lawyers and accountants; and the Gatekeepers: the holders of the assets – financial institutions; life insurance companies and government organizations. A Gatekeeper can be an institution which might insist on Probate. At this point, the secondary characters are relatively unknown. The antagonist could be anyone. If this were a choose your own adventure, deciding to go it alone rather than hiring a law firm could potentially take you down a path of personal liability.

Chapter 5: Treasure Hunting

You have just become the lead detective of this mystery. The sooner you can uncover all of the secret bank accounts, and buried gold, the quicker you can file the Probate application (if necessary) and then move onto the next chapter. What did the deceased own and where is it located? Are there other jurisdictions involved? Is this book going to be translated for world-wide sales (resealing or ancillary grants)? Are there Corporations? You could now be a Director. Maybe even a President. No, not the movie director or political figure kind of roles. Your mission, if you have chosen to accept it, is to compile a complete list of assets and liabilities, including the precise date of death values for each item.

Chapter 6: The Big Reveal

The million-dollar question that everyone has been asking: who is to inherit? It is time to publish a notice to creditors, notify all entitled beneficiaries, send out copies of the Will, complete the paperwork, check it twice, and apply to the court for Probate. The court will take your money (probate fees) and run (you hope), while you wait. Applications can take anywhere from one to ten months or more for the court to process. May the odds be ever in your favour.

Chapter 7: Nothing is Certain Except for Death and Taxes

Just because a person dies, doesn’t mean they don’t owe taxes. This is a tell-all chapter where you disclose everything you know about the deceased’s income and assets to your new best friend, the accountant, to avoid trouble with the (tax) law later.

Chapter 8: Show me the Money

Once you have that almighty court sealed Probate, you are officially the big boss, and nothing is standing in your way. It’s time to take care of business. The stage is set to sell, sell, sell (if the Will permits). You can take that money to the (estate) bank (account). In this instance, whatever you do, do not “pay yourself first.” Pay the debts of the deceased. You don’t want to be paying for those later (personally). Next is paying the beneficiaries. They only want what they’ve got coming to them (most of the time). All they want is their fair share (again, most of the time). However, don’t pay out anything without first knowing if you need receipts, releases or even indemnities. As an Executor you have the “Executor’s year” to take care of executor’s business before the big payout. Most beneficiaries will be asking when they will get their money, as predictably as a child asking are we there yet on a road trip. Stay calm and carry on. When the time is right, you will know.

Chapter 9: Ask and you Shall Receive (executor’s compensation)

If you think you are getting paid without approval from the beneficiaries or the court, you can fuggedaboutit!

Chapter 10: The End is Near

If all tax returns have been filed and all assessments received from CRA, it is time to get the all- clear (CRA clearance certificate). This is another waiting game of four months to a year.

Chapter 11: Epilogue

(Final thoughts)

Pay any remaining debts and professional fees, have a glass of wine and congratulate yourself. Send out any remaining money you have left to those who are entitled to it. C’est fini.

Thanks for reading!

Disclaimer: This blog is intended as a humorous, generalized overview of estate administration. It is not intended to replace legal advice.