DEALING WITH INSOLVENT                                     ESTATES                                     Michelle Isaak     ...
IntroductionPoints of intersection between bankruptcy law and estate  administration: Bankrupt individual dies before dis...
Definitions of insolvency Estate Administration Act (“EAA”), s. 100: “insolvent estate”  means the real and personal esta...
BIA is paramount As federal legislation, BIA is paramount over the EAA (and will be over WESA) and any other provincial le...
Bankruptcy Process under BIA S. 49: Voluntary assignment by personal representative S. 43: Involuntary application comme...
Potential liability if bankruptcy order S. 44(2) of BIA:  If there is a proceeding to place an estate into  bankruptcy by...
Trustee in Bankruptcy Trustee in bankruptcy is retained by personal  representative or appointed by court Trustee fees m...
Bankruptcy process  Trustee in bankruptcy:  1. Holds creditors’ meeting. Up to five creditors     appointed at meeting as ...
Bankruptcy process (cont’d)  5. May make interim distributions with approval of     inspectors.  6. Taxes legal costs if o...
Administering insolvent estate under EAAor WESA Same process as administering solvent estate,  except that debts must be ...
Priorities of creditors under BIABIA “Super-priorities” Secured creditors Preferred creditors, s. 136 Unsecured credit...
“Super-priority” Claims Statutorily mandated, secured against  specified assets of bankrupt. Examples:  • Crown claims fo...
Secured Creditors S.2 def’n:  …a person holding a mortgage, hypothec, pledge,  charge or lien on or against the property ...
Preferred Creditors      Bankruptcy and Insolvency Act, s. 136(1)          Estate Administration Act, s. 101(1)     (a) R...
Preferred Creditors (cont’d)  Bankruptcy and Insolvency Act, s. 136(1)            Estate Administration Act, s. 101(1)  (d...
Preferred Creditors (cont’d)  Bankruptcy and Insolvency Act, s. 136(1)              Estate Administration Act, s. 101(1)  ...
Preferred creditors under WESASections 169-174 of WESA Amended to add priorities and amend time  frames and amounts to mo...
Unsecured creditors  All other creditors, rateably and without  preference Under BIA, Crown claims for unpaid income  tax...
Funeral expenses Priority applies only if bankruptcy occurs after  death Person instructing funeral director is  persona...
Testamentary expenses Def’n: “expenses incident to the proper  performance of the duty of the executor”  • under BIA, inc...
Testamentary expenses (cont’d)  Section 170(a) of WESA - top priority among   preferred creditors given to:   “reasonable ...
Remuneration of Personal Representative Executor’s or Administrator’s fees have high  priority under EAA and WESA, but if...
Reasons to choose BIA process Expertise of trustee in bankruptcy needed because  estate is large, complex, with numerous ...
Reasons to choose EAA or WESA process Estate is small and debts are straightforward Personal representative wishes to re...
Life Insurance Does not form part of estate available to  creditors If deceased breached agreement to name ex-  spouse a...
Fraudulent transactions Fraudulent conveyance: disposition of  property designed to delay, hinder or defraud  creditors a...
Solicitor’s responsibility If assist in fraudulent transaction:   • Breach of Professional Conduct Handbook   • Potential...
Sources of liability for personalrepresentative pay off creditors contrary to priority scheme above distribute estate as...
Issues for solicitors advising executors May not get paid.   • Should ensure assets sufficient to satisfy     creditors w...
Other bankruptcy issues Deceased dies before discharge = bankruptcy  process carries on Insolvent executor = executor en...
Memorial Stone Thomas died. His will provided $40,000 for an elaborate funeral. As the last guests departed the affair, hi...
CONTACT INFO:                Michelle Isaak                Davis LLP                2800 – 666 Burrard Street             ...
Michele Isaak - Insolvent Estates
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Michele Isaak - Insolvent Estates

  1. 1. DEALING WITH INSOLVENT ESTATES Michelle Isaak Estate Planning Council of Abbotsford January 18, 2012<File No.>DAVIS LLP and the DAVIS LLP logo are trade-marks of Davis LLP, © 2007 Davis LLP, all rights reserved. Unauthorized copying, distribution and transmission is strictly prohibited.
  2. 2. IntroductionPoints of intersection between bankruptcy law and estate administration: Bankrupt individual dies before discharge under Bankruptcy and Insolvency Act (the “BIA”) Executor declares personal bankruptcy during administration of estate Beneficiary of estate may be insolvent Deceased’s estate is insolvent as result of death, or becomes insolvent during its administration.
  3. 3. Definitions of insolvency Estate Administration Act (“EAA”), s. 100: “insolvent estate” means the real and personal estate of a deceased person that is not sufficient for the payment in full of the debts and liabilities of the deceased person. Wills Estates and Succession Act (“WESA”), s. 169: “insolvent estate” means an estate that is not sufficient to pay all the debts and liabilities of the deceased person. Bankruptcy and Insolvency Act (“BIA”), s. 2: “insolvent person”: person… who is for any reason unable to meet his obligations as they generally become due. “person”: includes … “heirs, executors … administrators or other legal representatives of a person …”
  4. 4. BIA is paramount As federal legislation, BIA is paramount over the EAA (and will be over WESA) and any other provincial legislation creating a lien or charge over property
  5. 5. Bankruptcy Process under BIA S. 49: Voluntary assignment by personal representative S. 43: Involuntary application commenced by creditor • Creditor must be owed at least $1,000 in unsecured debt • Debtor has committed “act of bankruptcy” within 6 months of application  e.g. failing to meet obligations as they become due  e.g. fraudulent gift or transfer of debtor’s property • Court has discretion to stay bankruptcy proceedings Part 3: Debtor makes proposal to creditors, approved by court
  6. 6. Potential liability if bankruptcy order S. 44(2) of BIA: If there is a proceeding to place an estate into bankruptcy by creditor, personal representative will be personally liable if they pay any monies or transfer any property of deceased debtor after being served with the bankruptcy application, except as required for payment of proper funeral and testamentary expenses, until the application is disposed of.
  7. 7. Trustee in Bankruptcy Trustee in bankruptcy is retained by personal representative or appointed by court Trustee fees must be approved by creditors and court, must not exceed 7½% of the amount remaining from the realization of property of the debtor after the claims of secured creditors have been satisfied; subject to increase if complex administration
  8. 8. Bankruptcy process Trustee in bankruptcy: 1. Holds creditors’ meeting. Up to five creditors appointed at meeting as inspectors to oversee work of trustee. Meets with inspectors to discuss issues of administration and realization. 2. Reviews affairs of bankrupt, identifies questionable transactions. 3. Realizes assets. 4. Reviews proof of claims of creditors, and allows or disallows claims. Creditor has right to appeal decision to disallow claim to the court.
  9. 9. Bankruptcy process (cont’d) 5. May make interim distributions with approval of inspectors. 6. Taxes legal costs if over $2,500. Prepares final statement of receipts and disbursements, including proposed remuneration. Inspectors approve administration and matter goes to court for final approval. 7. Distributes to creditors, in accordance with priorities in s. 136. A levy is deducted from each payment and remitted to the OSB.
  10. 10. Administering insolvent estate under EAAor WESA Same process as administering solvent estate, except that debts must be paid in accordance with priority scheme in s. 101 of EAA (s. 170 of WESA) Advertising for creditors important Personal representative should be frugal with expenses
  11. 11. Priorities of creditors under BIABIA “Super-priorities” Secured creditors Preferred creditors, s. 136 Unsecured creditors
  12. 12. “Super-priority” Claims Statutorily mandated, secured against specified assets of bankrupt. Examples: • Crown claims for withholdings for income tax, CPP, EI • Employee claims for pension contributions • Employee claims for wages up to $2,000 Must be satisfied before secured creditors can exercise right to realize secured property
  13. 13. Secured Creditors S.2 def’n: …a person holding a mortgage, hypothec, pledge, charge or lien on or against the property of the debtor or any part of that property as security for a debt due or accruing due to the person from the debtor, or a person whose claim is based on, or secured by, a negotiable instrument held as collateral security and on which the debtor is only indirectly or secondarily liable, … Amounts still owing after secured property realized treated as unsecured debt of bankrupt
  14. 14. Preferred Creditors Bankruptcy and Insolvency Act, s. 136(1) Estate Administration Act, s. 101(1) (a) Reasonable funeral and testamentary (a) Reasonable funeral and testamentary expenses incurred by personal representative expenses incurred by personal representative (b) C osts of administration, as follows: (b) Costs of administration, as follows: (i) expenses and fees of person acting under (i) expenses and fees of personal Superintendent’s direction to protect representative estate assets (ii) legal costs (ii) expenses and fees of the trustee (iii) legal costs (c) Levy on all payments to creditors made by trustee to defray costs of Superintendent’s supervision (d) wages of employees for services provided (c) unpaid wages of employee for services during preceding 6 months before initial provided during preceding 3 months before bankruptcy event, up to $2,000 each, and up to death, up to $500 each, and up to $300 in costs $1,000 in costs for travelling salesperson, not for travelling salesperson already satisfied by “super-priority”
  15. 15. Preferred Creditors (cont’d) Bankruptcy and Insolvency Act, s. 136(1) Estate Administration Act, s. 101(1) (d.01) any shortfall suffered by secured creditor as result of super- priority for wages (d.02) any shortfall suffered by secured creditor as result of super - priority for unp aid pension contributions (d.1) arrears of periodic spousal and child support accrued in year before date of bankruptcy, and arrears of lump sum support (e) municipal taxes levied in 2 years preceding (d) municipal taxes up to the value of the date of bankruptcy, not secured against real Deceased’s interest in the property taxed, as prope rty, up to value of Deceased’s interest in declared by the legal representative property taxed (f) lessors for arrears of rent up to 3 months (e) landlords for arrears of rent up to 3 months preceding bankruptcy and accelerated rent for preceding death, up to the amount realized up to 3 months after bankruptcy if entitled from property on the l eased premises under lease, up to the amount realized from property on the leased premises
  16. 16. Preferred Creditors (cont’d) Bankruptcy and Insolvency Act, s. 136(1) Estate Administration Act, s. 101(1) (g) legal fees of creditor who first seized property, up to amount realized on property (h) for bankruptcies commenced before (f) indebtedness to Crown for employee November 30, 1992, indebtedness to Crown for withholdings, rateably em ployee withholdings, rateably (i) claims for injuries to employees of deceased (g) claims for injuries to employees of not covered by Workers Compensation Act, up deceased not covered by Workers to amount received from persons guaranteeing Compensation Act, up to amount received from bankrupt against such da mages persons guaranteeing bankrupt against such damages (j) for bankruptcies commenced before (h) other federal and provincial Crown claims November 30, 1992, federal and provincial not mentioned in (a) to (g), rateably and Crown claims not mentioned in (a) to (i), without preference, despite a statutory rateably notwithstanding any statutory preference to the co ntrary preference to the contrary all other creditors, rateably and without (i) all other claims, rateably and without preference preference
  17. 17. Preferred creditors under WESASections 169-174 of WESA Amended to add priorities and amend time frames and amounts to more closely reflect s. 136 of BIA • e.g. now a priority for spousal and child support owing personal representative’s expenses and fees still have high priority
  18. 18. Unsecured creditors All other creditors, rateably and without preference Under BIA, Crown claims for unpaid income taxes and unremitted employee withholdings rank as unsecured claim if bankruptcy declared after Nov. 30, 1992 Under EAA and WESA, all Crown claims have a priority over other unsecured creditors
  19. 19. Funeral expenses Priority applies only if bankruptcy occurs after death Person instructing funeral director is personally liable for costs, but entitled to indemnity from estate Only “reasonable” expenses are indemnified • Grave marker may be reasonable expense but must be simple and modest
  20. 20. Testamentary expenses Def’n: “expenses incident to the proper performance of the duty of the executor” • under BIA, includes legal and accounting costs incurred with respect to administration and distribution of estate • under EAA, does not include accounting and legal costs, as these rank below funeral and testamentary expenses = not clear what is meant by “testamentary expense” under EAA
  21. 21. Testamentary expenses (cont’d) Section 170(a) of WESA - top priority among preferred creditors given to: “reasonable funeral and other expenses incurred by the personal representative in administering the estate of the deceased person” • BUT in s. 170(c): “legal expenses” rank third = do legal expenses for probate fall under (a) and legal expenses to resolve insolvency fall under (c)? not clear
  22. 22. Remuneration of Personal Representative Executor’s or Administrator’s fees have high priority under EAA and WESA, but if estate is assigned into bankruptcy by creditor, claim of personal representative for fees becomes unsecured claim, may not be satisfied
  23. 23. Reasons to choose BIA process Expertise of trustee in bankruptcy needed because estate is large, complex, with numerous creditors and difficult priority issues Personal Representative wants to avoid exposure to personal liability and hassle of creditors Personal Representative may not recover fees Want to close off unperfected secured creditor’s opportunity to perfect security interest Want stay of enforcement of debts and judgments Want to make proposal under BIA
  24. 24. Reasons to choose EAA or WESA process Estate is small and debts are straightforward Personal representative wishes to retain control over the administration of the estate Personal representative is more likely to recover fees and expenses
  25. 25. Life Insurance Does not form part of estate available to creditors If deceased breached agreement to name ex- spouse as beneficiary of life insurance, ex- spouse may obtain equitable lien over proceeds in hands of named beneficiary on basis of unjust enrichment of deceased
  26. 26. Fraudulent transactions Fraudulent conveyance: disposition of property designed to delay, hinder or defraud creditors and others Fraudulent preference: transfers made by insolvent persons in preference of certain creditors with the intent to defeat, hinder, delay or prejudice other creditors = Transaction is void
  27. 27. Solicitor’s responsibility If assist in fraudulent transaction: • Breach of Professional Conduct Handbook • Potential liability for fraud or conspiracy • Potential criminal liability Query: can solicitor be liable to creditors for assisting client to arrange affairs to ensure insolvency on death to defeat those creditors??
  28. 28. Sources of liability for personalrepresentative pay off creditors contrary to priority scheme above distribute estate assets, other than to pay funeral and testamentary expenses, after being served with an application for bankruptcy distribute estate assets before satisfying claims of creditors of which they had actual or constructive notice if estate assets insufficient to fully indemnify the personal representative for proper costs incurred
  29. 29. Issues for solicitors advising executors May not get paid. • Should ensure assets sufficient to satisfy creditors with higher priority than legal costs as well as legal costs, or obtain retainer
  30. 30. Other bankruptcy issues Deceased dies before discharge = bankruptcy process carries on Insolvent executor = executor entitled to carry on with administration of estate Insolvent beneficiary = may be able to protect interest in estate for beneficiary if held in fully discretionary trust for beneficiary and others • BUT trust interest may be taken into account on discharge
  31. 31. Memorial Stone Thomas died. His will provided $40,000 for an elaborate funeral. As the last guests departed the affair, his wife Megan turned to her oldest and dearest friend. Well, Im sure Thomas would be pleased, she said. Im sure youre right, replied Helen, who lowered her voice and leaned in close. How much did this really cost? All of it, said Megan. Forty thousand. No! Helen exclaimed. I mean, it was very nice, but $40,000? Well, Megan answered, The funeral was $6,500. I donated $500 to the church. The whiskey and snacks were another $500. The rest went for the Memorial Stone. Helen computed quickly. $32,500 for a Memorial Stone? My God, how big is it?
  32. 32. CONTACT INFO: Michelle Isaak Davis LLP 2800 – 666 Burrard Street Vancouver, BC V6C 2Z7 604-643-6466 misaak@davis.ca www.davis.ca

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