Estates & Covid: The Good, Bad And Opportunities

The trust and estates industry is no different.

At a very high level, trust and estate industry professionals offer two sets of services to clients. The first is planning-related, such as: drafting and executing wills or powers of attorney to ensure an effective succession to beneficiaries. The second set is administration-related, which includes the administration of an estate.

While both planning and administration services operate under the same industry banner, the responses to COVID from each side of the industry has been radically different.

Over the past few months, Canadians are scrambling to draft wills or update existing ones. A senior trust and estate consultant at a major Canadian financial institution told us many lawyers had to stop taking new clients because the demand for these services was too high. New startups offering online will-and-POA-making capabilities, such as Epilogue and Willful for individuals and eState Planner for professionals, have seen consistently strong demand for their services.

Furthermore, meeting with a lawyer to create a will has become more complicated. Still, governments and regulators across Canada have stepped up to introduce and pass much-needed legislation that serves to ease the burden of executing estate planning documents remotely.

In March, Quebec became the first province to introduce innovative relief measures for the electronic signing of notarial acts, including wills, powers of attorney and protection mandates.

The new legislation authorizes the remote execution of notarial acts, subject to the following conditions:

1. The notary must be able to see and hear the parties to the act; each party or intervenor must be able to see and hear the notary; when the context requires (as in the case of a will which requires a witness).
2. The witness must be able to see and hear the parties as well as the notary.
3. The signatories and the notary must be able to see the document or, as the case may be, the part of the document which concerns them; the signatories, except the notary, must sign by an electronic method that permits their identification and consent.
4. The notary must sign with his/her official electronic signature.

In April, Ontario allowed for virtual witnessing of Wills and Powers of Attorney during the COVID-19 emergency as long as one of the two witnesses is a lawyer or a paralegal. Subsequently, virtual witnessing of Wills and Powers of Attorney could be done in counterparts, allowing each witness and the maker of the Will and Powers of Attorney to sign a separate identical copy of the documents, which together form the complete Will and Power of Attorney.

In June, British Columbia introduced Bill 21, which proposes amendments to the Wills, Estates and Succession Act of British Columbia, to enable the courts to accept wills that are created on a computer and signed electronically, and for which there is no printed copy. The amendments will also allow the use of technology to witness wills by people in different locations. As well, the proposed legislation contains new procedures for revoking or altering electronic wills.

By August, more than 9000 Canadians have lost their lives to COVID-related complications. Because the Courts and law firms aren't fully operational yet, it remains to be seen how the estates of those who have lost their battle with COVID will impact the Court processes and the law firms that assist grieving families.

With existing restrictions, filing documents in the relevant courts has been a challenge for most. In-person attendance at the Courthouse is shut down, so filings have to occur by mail or courier. The cost trade-off here is negligible, as most practitioners use "Court Runners" (local couriers who offer court filing services), and the cost of a runner versus a courier service (FedEx, Purolator) is comparable. Unfortunately, many firms rely on the Court Runners' knowledge of the local Courthouse and staff to get paperwork filed with ease. When a package arrives in a sealed envelope by courier, any questions the Court Clerk may have can't be answered and addressed immediately. The lack of interaction results in a game of phone tag between the Court Clerk and the firm, particularly where staff at the law firm are working remotely and may not have immediate access to their office voicemail.

With many staff working from home, we have had constant reminders about how paper-heavy and manual labour-intensive an estate practice can be. If no one is on-site to accept client documentation, scan it, and make it remotely available to staff working from home, any given file will come to a halt.

It has also become more difficult for executors to get valuations on real estate and other physical assets because of social distancing requirements. Many appraisers have been reluctant to visit estate properties and have been doing ‘drive-by' appraisals or appraising photos. Matters are complicated further when an estate that has multi-jurisdictional assets, like US property.

Going to someone's residence to gather information after they pass away cannot be done remotely. Beneficiaries cannot receive distribution cheques paired with update letters about the estate progress remotely.  They cannot send faxes to government agencies that do not accept secure emails remotely.  They cannot scan, print, receive mail, file items, send couriers, or get to a property to secure assets (that only you have the keys for) appraised and cannot swear an affidavit that needs a notary seal remotely.

For these reasons, one trust officer we interviewed had no choice but to work from the office every day.

“By being the ‘person present' in the office, I am now the ‘person available,” she shared.

“For everything. Always. The sole conduit for calls, questions, for situational inquiries by estate/wealth planners, and mentoring conversations with colleagues. Available to organize the department's mail, collect people's printed items, print letters and pair them with cheques, and check their desks for items they need, but FORGOT (...there's always an extra key hidden somewhere!). Available to check the file room for documents, see if a fax came in, take an incoming call from prospects or clients (ALL the incoming departmental calls, actually), get items notarized for others, and to go down to the vault when ‘dual custody' is required, because ... I'm the only one there!”

It's 2020; there has to be a better way.

One bright spot has been the Canada Revenue Agency (CRA). While acknowledging that processing times may increase because employees are working under various restrictions for their health and safety during the COVID-19 pandemic, the CRA has created a temporary procedure allowing taxpayers and their representatives to submit clearance certificate requests and supporting information via email.

I recently got a call from a trust and estates lawyer, who claimed he had never worked so hard in his entire career as he has in the past few months.

"I'm working fifteen-hour days, but only able to bill clients for half since I'm spending half of my time commuting to the office to pick up client files when I receive a phone inquiry from beneficiaries."

Estateably is committed to solving the problems that result from a lack of digitization and highly manual processes undertaken by estate and trust administration professionals. By complementing existing processes with modern technologies, we offer an automated and compliant solution that increases staff capacity and collaboration between stakeholders while decreasing manual documentation requirements and driving business revenues.

Just the pandemic has spurred the planning side of the trust and estate industry to innovate and adopt much needed technological changes, the administrative side must be quick to follow, or risk falling even further behind.