Photo Credit: Universal Pictures

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

If you are the lucky (or more often unlucky) person appointed to administer an Estate, you may have more stress than usual this holiday season.

I wrote this blog in hopes of protecting your mental health and preparing you for the often-inevitable inquiries from impatient beneficiaries and the uncomfortable family discussions that can occur this month.

Like Rudolph leading the sleigh, or in this case, the Estate administration, acting as Executor is a big responsibility. Being the “Chosen One” to manage such a difficult and demanding job is not all fun and reindeer games.

As an Executor, sometimes, you can feel like Santa Claus delivering gifts of money to beneficiaries who desperately need it or even to worthy charities raising funds to make a difference. This time of year especially, it can feel amazing to be delivering generous gifts. Although you are not the donee personally, without your help and hard work, the gift would not magically find its way to the beneficiary down a chimney or otherwise.

Or you can feel like the Grinch, ruining everyone’s plans by not distributing the money when they want it. Beneficiaries may be entitled to money that you cannot actually pay to them right now, even though they want it or need it, and definitely not in time for Christmas or Hanukkah.

Expectant beneficiaries can put tremendous pressure on you. If you find yourself in this situation, perhaps a little empty-handed or hand-tied when it comes to distributing the assets in the Estate, in this season of giving or any other time, it might due to one of the reasons below.

Top 10 Reasons why you can’t distribute the Estate this Holiday Season are:

10.       A Certificate of Appointment of Estate Trustee (probate) is required, and the court is slow at processing the application. This one is a frequent problem in Toronto specifically, where applications can take up to 8 months or even longer;

9.         Financial institutions like banks and insurance companies are still processing paper in the back office or Estates department;

8.         Assets in other jurisdictions (different countries or provinces) may have specific requirements such a provincial death certificate or a resealed probate certificate which has more steps and takes considerably longer to collect and distribute than those in Ontario;

7.         Outstanding debts and taxes need to be determined and settled before payments to beneficiaries can be made;

6.         Liquidity is an issue for the Estate – there may be valuable assets but no cash to hand over. As an example, the assets may consist of real property that has not yet been sold;

5.         There may be Estate litigation. Once the fighting starts, all money is frozen until that issue is resolved. Will challenges can add significant delay and cost to Estate administration. The result could mean a long wait for beneficiaries with less in their pockets than they anticipated;

4.         Deliveries of documents and cheques are slower because couriers and Canada Post are busier than ever;

3.         Judges, court staff, employees at financial institutions, lawyers, law clerks and legal assistants take holidays too; and

2.         You are waiting for the Canada Revenue Agency to issue a clearance certificate first (which can take up to a year after all tax filings are complete);

And the number one reason is:

1.          The beloved dearly departed tried to save money and didn’t do proper Estate Planning so everything is going to take 10 times longer and cost twice as much.

What can you do?

In these instances, take a deep breath and remind yourself that you are doing the best you can. The gift of “found money” should be appreciated all year long, not just during the holiday season when the pressure is on to spend, spend, spend.

Yes, there may be money, and yes, family and friends may be asking for it. But there is a process that has to be followed to get that money into the hands of the beneficiaries. Probate protects the banks and financial institutions; indemnity documents protect you as an executor, liabilities have to be paid, taxes have to be filed. Usually, all of this takes time.

Manage the expectations of your beneficiaries by avoiding making promises you cannot keep. Get advice from your lawyer before giving anyone a date or timeframe for the transfer of funds to them.

You are likely seeing family more frequently than usual.  You may want to avoid facing relatives due to expectations and questions you don’t want to deal with. Try not to let your “Executor Hat” be the only outfit you wear this holiday season. Don’t let it keep you from enjoying the festivities. Reindeer ears, Santa hats, elf shoes and even toques with big pom poms are all acceptable too.

Just because you are not handing out cheques from the Estate in your holiday cards, does not mean you should be exiled to the Island of Misfit Toys (and Unpopular Executors). Remind those family members that you are working on it, help yourself to a sugar cookie and move onto a safer topic. Like how much snow we are getting this year.

Here’s a thought to keep in mind from the Grinch himself:

“Maybe Christmas (he thought) doesn’t come from a store. Maybe Christmas perhaps means a little bit more.” — The Grinch.

Warmest Wishes for a Holiday Season that means a little bit more!