Today’s blog is being brought to you by guest blogger, Jennifer Campbell, a law clerk in the Private Client Services group of Fasken LLP.
I, like many of my colleagues, have been working from home for what feels like an eternity now. While I’m used to working remotely a couple of days a week, I don’t have to convince others who are now working remotely five days a week that there are additional challenges that we are experiencing during this time. This certainly holds true when trying to assist clients administer estates.
The social distancing restrictions that are in place because of COVID 19 are causing additional issues when dealing with an estate, such as:
- accessing safety deposit boxes (for purposes of inventorying its contents or collecting the Will), particularly where a bank branch has temporarily been closed;
- gathering information about assets, including obtaining appraisals related to the value of assets as at the date of death;
- monitoring ones’ symptoms to ensure that meeting with a client to execute documents while wearing gloves and masks is both safe for you, but also safe for the client;
- filing applications for a Certificate of Appointment with or without a Will (the “Certificate”), particularly when hours at the court when filings can occur have been restricted;
- obtaining the aforementioned Certificate;
- attempting to deal with the investments of the estate when the Certificate has not yet been received, particularly given the fluctuating markets; and
- listing and selling real property owned by the deceased.
In most cases, having to obtain the Certificate to deal with assets of the deceased can be a long process. Currently, courts have limited their staff working onsite, which means it is likely possible that there are less court staff processing new applications for Certificates, thus causing lengthier delays. While I have heard some court locations are issuing new applications in a day, I have also heard that other courts are not processing applications, relying on the Superior Court of Justice “Notice to the Profession” dated March 15, 2020 which indicates that only urgent matters will be heard. This delay can be frustrating to clients and to beneficiaries.
Executors or administrators have a fiduciary duty to administer the estate of a deceased in a timely fashion and in the best interests of the beneficiaries. When in the midst of a pandemic, reasonable attempts at administering an estate in such timely fashion appear to now be more difficult. For example, as we have seen, a home that has been listed for sale can take longer to sell and may be sold at a lower price than the appraised value at the date of death. Where the issuance of the Certificate is delayed and with the current uncertainties with the real estate market, these two matters can impact an executor’s ability to administer the estate in a timely fashion.
To reduce the risk of criticism by beneficiaries, continual communication about tasks that an executor has completed would be recommended. For example, if the executor has listed the deceased’s home for sale, keep the beneficiaries posted about the listing, how are showings going, sales in the area, etc. Executors can also provide the beneficiaries with an update on the probate process. Being transparent with beneficiaries will go a long way.
During this time, it is recommended that you pack your patience and know that at some point things should get back to “normal”. The new “normal” is still to be determined. Once the courts start opening operations back up to the way they were before COVID times and with the number of deaths that have occurred during this time, courts will likely be inundated with new applications.
In the meantime, stop and smell the roses now that the weather is cooperating. Hopefully the feeling that each day is like Groundhog Day is beginning to pass.