In our last blog post, we discussed factors relating to the COVID-19 pandemic to consider when making a Representation Agreement. Relatedly, this post discusses factors to consider when acting as a personal representative (of an estate) or as an attorney (named in a power of attorney instrument) in light of the pandemic.
1. A personal representative or attorney's ability to sign documents in person
Some actions of a personal representative or an attorney typically occur in-person. For example: attending a bank to complete client identification and sign account transfer documents, or meeting with a lawyer to swear affidavits required for land transfers or estate grant applications. Current travel restrictions and health concerns may prevent these in-person meetings.
Due to the current pandemic, both the B.C. Supreme Court (the "BCSC") and the Land Title and Survey Authority are allowing individuals to swear affidavits in the presence of a lawyer or notary connected to the individual by videoconference. Certain requirements must be met to utilize this process; for example, the BCSC requirements include a written confirmation by the lawyer or notary that it was impossible or unsafe, for medical reasons, for the deponent and commissioner to be physically present together.
2. A personal representative or attorney's ability to deal with assets
Personal representatives and attorneys may face challenges in safeguarding, accessing, valuing, and liquidating assets in accordance with the duties and powers provided in the appointing instrument. For example, a personal representative or attorney's access to a safety deposit box containing assets may be restricted due to the institution's pandemic-related internal policies. We recommend scheduling meetings with institutions in advance of appearing in person in order to ensure compliance with the institution's pandemic-related policies.
3. Decision-making where multiple personal representatives or attorneys
A will or power of attorney instrument may name multiple executors or attorneys and direct that they act unanimously. Depending on where each personal representative or attorney lives, the appointed group may need to find ways to make important decisions on behalf of the estate or the adult without meeting in person.
An individual making a will or power of attorney may wish to consider these logistical difficulties when deciding who to name in these documents. Moreover, personal representatives or attorneys in this position may wish to make use of technologies such as videoconference in order to optimize their remote decision-making.
4. Obtaining an estate grant and distributing the estate
A personal representative may face additional administrative difficulties in administering an estate.
For example, in B.C., once a personal representative obtains an estate grant, they must wait 210 days (the "210-Day Period") from the date of the grant to distribute the estate. However, all limitation periods have been suspended in B.C. since March 26, 2020 as a result of the pandemic. This means that any 210-Day Period that was running on March 26, 2020 or that would have started running after that date, is currently paused. A 210-Day Period will not start running again until 90 days after the end of the ongoing provincial state of emergency.
A personal representative who wishes to distribute the estate before the 210-Day Period expires may only do so by obtaining one of the following:
(a) a court order allowing distribution; or
(b) the consent of all beneficiaries with an interest in the estate and all persons who could apply to vary the will (i.e. spouses and children).
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.