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Estate Planning

The toughest job you may have never wanted Add to ...

Tanya McKay’s uncle had no children, so as the eldest of his five nieces and nephews she was named executor of his estate.

Ms. McKay, a 74-year-old retired high school teacher in Niagara Falls, Ont., accepted the role willingly. But until her uncle died she had no idea how difficult the job would actually be.

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There was a house to sell, but first the mice had to be cleared out, and Ms. McKay had been instructed to put the contents of the house up for auction. She gave some of the smaller, older items to charity and hired an auctioneer. Then there was artwork and jewellery and a coin collection that each needed to be properly appraised and sold for the best price. And a collection of more than 4,000 books that Ms. McKay had also been advised to sell separately.

“I never worked so hard in my life,” recalls Ms. McKay. “We had to get all those books out of the house and find a place to store them, and then we had to lug them all several miles to this hall that we had rented to have the book auction. Quite a few people turned up, but nobody really wants to spend money on second-hand books. I don’t blame them.”

Ms. McKay was lucky in a couple of ways. “The big plus was that my husband was a lawyer, because I honestly wouldn’t have had a clue how to go ahead,” she says.

She’s not alone. It has been estimated that Canadian baby boomers will inherit as much as $1-trillion in the next 15 to 20 years, and that massive sum of money is causing a new focus on how estates are settled.

“The generation that is dying, the people in their 80s and 90s, are people who were savers,” notes Jan Goddard, a specialist in elder law. “They lived through the Depression, they lived through the Second World War, and they were careful with their money.

“Real estate values went up tremendously over the last 50 years and with the labour movement and pensions and health benefits, people accumulated wealth in ways that previous generations really didn’t,” she adds. “That’s created expectations about inheriting that money, and that does put an executor at risk of criticism.”

While Ms. McKay’s husband was a blessing, the biggest plus in her situation might have been the total support – and trust – of the four other beneficiaries.

“Nobody was grasping or materialistic,”she says.

Indeed, so many executors wind up in battles these days that a Kitchener, Ont.-based company called Estate Risk Protection Plan Inc. has come up with a new insurance product that offers some protection to executors or estate trustees who are worried that a feuding family member or other beneficiary might sue them. The creators of the product say that as far as they know it is the first of its kind in the Western world. And it says a lot about the ways in which society is changing.

Scot Dalton, the CEO of the company, came up with the idea after his father-in-law died and family members asked Mr. Dalton to lend his mother-in-law a hand fulfilling her role as executor of the estate.

“I knew nothing about what the task really involved,” Mr. Dalton says. “I expected it to be a simple job, but it was in fact very complicated. It was a real test of a number of my own business and personal skills.”

As they trudged through the process, Mr. Dalton began thinking about all the mistakes that are possible to make. That got him thinking about the personal risk that comes with the role, especially for individuals who are dealing with large and unwieldy estates or who have bickering beneficiaries. Executors can be sued, and potentially find themselves on the hook for large sums of money.

Fast forward a few years and Mr. Dalton is working furiously to convince Canadians that ERAssure, errors and omissions insurance for average people who are acting as executors, is a timely idea.

Messier family structures, larger more complicated estates, and the trend toward litigation will result in more executors being sued, Mr. Dalton argues. The company points to statistics that illustrate the decline in “traditional” families: More than one-third of marriages in Canada are expected to end in divorce before the 25th anniversary.

“If you look back to my parents’ day, we had the nuclear family – at least, the children and the beneficiaries typically knew each other pretty well,” he says. “. .. And we had smaller and simpler estates.

Today, “you’ve got blended families, extended families, nontraditional families, second and third marriages. You’ve got situations where sometimes the offspring of these various types of relationships may not know each other and sometimes haven’t even met each other. On top of that, we’ve got more complex and larger estates.”

According to Estate Risk Protection Plan, angry beneficiaries usually criticize executors for giving preferential treatment to certain beneficiaries; selling a property or asset at a time when it didn’t fetch as much money as it could have; having a conflict of interest; or not properly valuing the assets.

“People are imposing higher expectations on the conduct of trustees every day,” says Ian Hull, a Toronto-area lawyer who specializes in defending executors who are being sued. More than half of his clients were never told that they had been named the executor, and only learned of that fact after their friend, relative or acquaintance had died, he says.

Meanwhile, provincial laws have been updated in recent decades to clarify aspects of an executor’s role, and many estates have become more complicated as the array of investments have stretched far beyond plain vanilla stocks, bonds and real estate. That’s leading to larger caseloads.

“Executors, when they have to unravel those [financial]holdings, can make the slightest mistake and that can turn into a tens-of-thousands of dollars or hundreds-of-thousands of dollars Canada Revenue Agency problem,” Mr. Hull says.

This new concept of insurance for non-professional executors (lawyers and professionals who act as executors often already have insurance) is intriguing, says Hilary Laidlaw, a trusts and estate-planning lawyer with McCarthy Tetrault. The product is new and largely untested, and it’s yet to be seen whether it provides any real value to executors.

But “I think the product is an interesting idea because very few people, in my experience, recognize the liabilities that executors face,” Ms. Laidlaw says.

Individuals who have been named executor of an estate are entitled to decline the role, even if the person who named them has already died. But they frequently don’t, even if they are worried that they might be in over their heads.

“Guilt takes over because you think ‘gee, they named me and who is going to do it if I don’t, I better take it on,’” says Ms. Goddard.



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