Friday, June 18, 2010

What happens with a bankrupt estate?


First of all, it's important to realize that there is a difference between an insolvent estate and a bankrupt estate. An insolvent estate, which is much more likely, simply does not have enough assets to pay all of the debts. A bankrupt estate has actually declared bankruptcy.

When talking about either insolvent or bankrupt estates, I often hear people comment that nobody needs to do anything about it because obviously there are no assets. But that's not necessarily true. A deceased person could have a half-million dollar home and another half-million in investments, but if he or she has more than a million dollars in debts and liabilities, there isn't going to be enough money to pay all the creditors. So even though there are assets, the estate is still insolvent. And someone still has to sell that house and cash in those investments on behalf of the deceased person and pay out the proceeds.

That person is the executor named in the Will. If there is no Will, there should be an administrator appointed by the court in the usual way.

Usually in an insolvent estate, the executor will negotiate with the creditors to come to an agreement as to how much each will get. Often everyone agrees to a certain amount "on the dollar" so that they'll each recover at least part of the debt. It's to everyone's advantage not to turn it into a lawsuit, because fighting it out in court means the resources of the estate, which are already not enough, will end up being spent on legal fees and court fees.

If after an executor starts working on the insolvent estate, it is petitioned into bankruptcy by the creditors or the executor declares that the estate is bankrupt, the executor will have to step out of the picture. The control of the assets and debts will be handed over to the Trustee in Bankruptcy to deal with. The executor's claim for compensation can be added to the other claims against the estate.

22 comments:

  1. Thank you for sharing this info, so just to be clear a insolvent estate for example is like a building that is built or being built but runs out of funds to pay debt, and bankruptcy is simply just bankruptcy. I'm trying to gain all the bankruptcy in Edmonton information I can before I make a financial decision.

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  2. my brother in law owned a rather large antique business in Ontario which took in a great number of consignments, apparently there is a large amount owning to consignees that we cannot find a paper trail etc. we are concerned that these individuals might bring a law suit against the company and the owner of the limited company ? can a limited company owned by a deceased individual declare bankruptcy or be insolvent if there are funds owing to individuals. some of these agreements were made quite a few years ago and we cannot find paperwork, just verbal statements that the company did not pay. how does one get a forensic audit performed, would it be advised . will the accountant or the lawyer be able to answer this question for us? thank you Lynn for your timely advice

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  3. What if the deceased was in bankruptcy at the time of death? I am executing my father's estate, and he had declared bankruptcy just over a year before his death (or rather, I had using his power of attorney as he was insolvent and not competent to handle his affairs). The very small amount of money in his estate is not sufficient to cover the bankruptcy and his outstanding tax debt.

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  4. These are all great questions. I came across this blog and notice that the questions are over a year old, but I would still like to provide answers, as it may help others.

    My name is Ira Smith, President of Ira Smith Trustee & Receiver Inc., a Toronto bankruptcy trustee. Our website is www.irasmithinc.com

    Here are the answers:

    1. Tom, you are correct. Another definition is that insolvency is the financial state of not having enough assets, when liquidated, to pay all of your debts. Bankruptcy is the legal state of having declared bankruptcy.

    2. Anonymous 1, there is no point putting the antique company into bankruptcy as the consignment goods are property of the people who put them into consignment, not the antique store company. In bankruptcy, if the rightful owners can prove that it is their respective property, the trustee has to give it to them. For consignment property already sold, and obviously the funds are not available to give to the respective owners of such property, a case could be made that the respective owners have a trust claim against the assets of the company, that is NOT property owned by others. It has to be against the assets owned by the Company. The other argument may be that the Director(s) of the Company are liable for allowing "theft by conversion". In the case of the deceased Director, it may matter if there are assets in the deceased's Estate. If there are no assets in the deceased's Estate, then it probably ends there. A lawyer would have to be consulted.

    3. Anonymous2, you have to differentiate between pre-bankruptcy and post-bankruptcy debts. The post-bankruptcy creditors would have a claim against the assets available at the time of your father's death, as all of his assets (other than for personal exemptions) at the time of his bankruptcy would have been seized by his trustee. But before any third party could make good on their claim, the funeral costs would have to be paid for. If there is no amount remaining, then it all ends there.

    Finally, I am sorry for all of your individual loss. I hope this helps.

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    1. Thank you, Ira Smith, for answering those questions. Such questions really do need someone with your expertise to answer them, and I appreciate your help.

      Lynne

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  5. This is all helpful, thank you. My best friend lost her 22 yr old son last month in a drowning accident. He has a truck with a loan on it. The truck is registered and insured in AB, they have provided a notarized letter and death certificate to the financial institution.I have asked the bank to pick up the truck as it is a constant reminder that they have lost their son. The bank rep is saying they need proof that there is nothing in the estate or a notarized letter stating that they refuse the estate. I told the rep that AB is a seize and sue province so why do they need that before picking up the truck. I used to work in the Auto finance world and I have never heard of this.

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  6. I think that this is a somewhat related question to the above thread.

    I'm the executor of my father's estate whose assets consist primarily of an assortment of household items (+laptop and TV etc), some generators, and a 10-year old mobile home/trailer. He doesn't on the land or a car and was essentially living off grid. His trailer had some mold/water damage issues in the recent past and I'm guessing probably doesn't have much of a resale value (also given what a buyer would have to do to dislodge it from the lot). He has ~$80k in debt, including what he still owes on the trailer, and maybe a thousand dollars or so in assets.

    Now that I've detailed his assets/liabilities, I'm not sure how to proceed. How should I as executor go about liquidating this mess? Do I have to personally try to sell his old laptop, TV, and trailer as best I can? What should I do if nothing sells (e.g., especially the trailer)? Do I need to get some kind of appraisal on the trailer to confirm it's potential resale value (or lack thereof)?

    Any advice would be greatly appreciated!

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  7. I think it really comes down to who are the beneficiaries under the will. Notwithstanding estate laws, if you are the sole beneficiary, or if the beneficiaries are all family that get along, perhaps you can short circuit things as the assets obviously have minimal value.

    Your main reason for getting appraisals should be to protect yourself against claims from the beneficiaries that you were negligent in the value you obtained for the assets.

    Also, if you get something for the assets now you have the problem of then paying the creditors pro rata. You may be better off with no realization!

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  8. My husband passed away in October of 2015 in Alberta. I am the sole beneficiary and executor of his estate. We own two homes that have reverted to my ownership. My husband had very high debt between lines of credit at a couple of banks and a couple of credit cards all in his name. The value of his estate is basically the $2500 death benefit from Service Canada. I am sick to my stomach due to his large tax bill that he owes. It is thousands and thousands of dollars. Am I legally responsible to pay this as his spouse? Is there any kind of forgiveness law with the CRA in situations like this?

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    1. Hi Valerie. First, I would check with your lawyer. I know Alberta has certain laws to protect the family home. However, I don't know if two homes means that one is unprotected.

      If you and your late husband owned the homes jointly, then although under his Will the homes revert to your sole ownership, again, your lawyer can counsel you on whether they transfer without his creditors being able to touch one or both of them, of ir one might be available to your creditors.

      If your husband had a large unpaid tax bill, your lawyer should also do a title search to see if CRA has registered a federal judgment against one or both of the homes.

      Your lawyer will have the answers for you. In general, unless there has been a transfer of property from your late husband to you, while he was both alive and insolvent, you wont' be responsible for any of his tax debt.

      There is no forgiveness when it comes to CRA! Check these things out with your lawyer.
      www.irasmithinc.com

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  9. So happy I found your blog, I would much appreciate your take on my father's recent death

    Dad died without a will or power of attorney. My sister and I have been searching through all of his papers to locate insurances and other pertinent documents.

    As it stands right now we are unable to find any life insurance or record of life insurance premiums being paid, and have confirmed he opted out of the military life insurance plan when changes were made in the early 1980's

    There is the CPP death benefit of $2,500, and trying to find out if he is still eligible for the retired military death benefit. If he is, that will come close to paying the funeral costs.

    What we have found is he has been a hoarder since our mother passed away 3 years ago, and not keeping current with his bills. Mortgage, line of credit, hydro, CRA

    His house is in a terrible mess including a roof in dire need of replacement, and abuse from clutter and 2 large dogs.

    He has credit card debt in excess of $20,000, an equity line of credit on the house owing in the amount of $124,500, joint ownership on another house with a person receiving ODSP. This person has been contributing $250/month, and dad has been contributing $700+ per month to help her out. We have found out the second house (the jointly owned one) was recently put up under power of sale by the private lender. There is $80,000 owing on that property, and it is up for sale for $99,900, also in dire condition. His own house will require in excess of $25,000 to make it inhabitable.

    Dad also had a motor home, and a fairly nice one, but when when the hoarding exceeded the limits of the house, he began storing garbage and clutter in that. In fine condition they sell for $30,000 in very good condition, unfortunately this one has been abused.

    With the properties and vehicles needing extensive repairs to be sellable, the numbers tell us the estate will be insolvent. The question I have is this…

    Are we required by law to become joint estate trustees and settle this mess? Or, and at the risk of sounding cold, what happens if we do nothing?

    Are we legally required to invest our own money, time and effort into closing this estate?

    Lots of confusion, and difficult to locate information about this sort of situation.

    Any insight would be amazing.

    Regards,
    Brian

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    1. You are NOT liable for any of his debts unless you co-signed for them. Unless you think you will recover your money I would NOT sink any personal money into anything. You will likely be on the hook for any funeral expenses as you signed for them. The funeral expenses are tops on the list of who gets paid. Check with the military, my dad was retired DND and my mom received a $10,000 payout on his death as a final pension death benefit. If it helps....think of all this as a business transaction and try not to link this to your dad personally !

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  10. Brian, my understanding is:

    1. Those named in a will as executors/trustees have a choice whether or not to accept the role. Check your provincial government website for details as to how situations are handled by the government when trustees refuse the position.

    2. No, but keep in mind that once the appointment is accepted, if there are no funds in the Estate, the money has to come from somewhere. It is a bit like a game we played as kids called "Tag", once you are tagged, your IT.

    You aren't cold, just realistic!

    www.irasmithinc.com

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    1. Thanks, Ira, for your usual great information :)

      Brian, I agree with Ira. You are not required to take on the role of executor/trustee. There was no will, so you weren't named, but as his children you are the first in line to apply for letters of administration. However, be careful about how you present your status to the world. Once you become involved by telling insurance companies or banks or creditors that you're looking after the estate, you might not be able to quit or back out without incurring liability for the undone work, unless a judge releases you. Searching through papers and paying the funeral won't compel you to act as estate administrators, but as I said, if you've been telling people that you're administering the estate, you're skating close to the edge.

      Lynne

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    2. Thanks Lynne for your kind words and excellent advice. Have a great weekend.

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    3. Thanks Lynne and Ira, it's comforting to hear that this is not a cold way of thinking.

      Thanks so much for your replies,
      Brian

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  11. Hello,

    I have been reading through the questions and answers with much interest and have a question myself.

    My FIL died in December and similar to Brian's father, he was a hoarder with a large amount of debt and a house in very bad condition. He owes a large amount of money for a mortgage plus another $10,000 of consolidated debt outside of the mortgage. We are trying to clean up the house, but it is a lot of work. It costs roughly $1600/month to keep the house going (between mortgage, property taxes and bills). As the house is in bad condition, I am worried about it not selling. In another twist of fate, my husband's grandfather (his dad's dad) passed away 10 days before his dad and there is some money coming from his estate into the dad's estate. Now, my question is, if in worst case scenario the house doesn't sell and we exhaust the money from the grandfather's estate, is my husband as executor on the hook for paying for the house until it can sell? Or can we declare the estate bankrupt at that point and walk away and leave the bank to deal with it?

    Thank you in advance for your help!

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  13. I am in the latter part of administering the estate of my mom. She was predeceased by my dad by a little less than a year. I had a few questions: The estate is in Nova Scotia.

    1. As she was the sole beneficiary of his estate any new assets are hers, correct ? There was a $4000+ tax refund on his final return.

    2. She bought a brand new car months before she died and financed it through a bank. I am in the process of completing the inventory, seeing as the car is worth less than the loan, is it still considered an asset ?

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  14. Hi,

    My brother passed away and I am the designated beneficiary of his LIRA of ~360,000 and his TFSA of ~25,000. He has a small RRSP of 1,600, bank account of 1,000, a car worth approximately 13,000 and a non-registered Mutual Fund of 51,000...all of this will be part of his estate. He has some bills including VISA and Line of Credit totalling 15,000.

    How I understand it, I will receive the money from the LIRA and TFSA. Will I be responsible for paying his tax liabilities and his debts for his visa and line of credit? His tax return for 2016 will probably have a balance owing CRA for close to 160,000. He will have some money remaining in his estate but will probably be short 100k.

    Do you know what bills are paid first in an estate? VISA, Line of credit, funeral expenses, tax liabilities.

    I appreciate any information you can give me. I want to share this money equally with my children but I don't want to end up with some unexpected bills afterwards.

    Thank you!

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  15. Hi Diane. Generally, testementary costs come out first. Since you are the designated beneficiary of your late brother's LIRA, then that should pass to you directly and bypass his Estate. Funeral costs come out of the Estate first. So what should be in the Estate is the TFSA (unless that is with an insurance company and you are the designated beneficiary on that also), RRSP, bank account, the car and the mutual fund.

    The Estate Executor/trix will have to do the 2016 tax return up to the date of death, and then the final 2016 tax return taking into account the result of the dispositions of the assets. If your estimate of income tax payable is reasonably accurate, there will not be enough funds to cover all the Estate's liabilites.

    At that point, the simplest may be for the Executor/trix to obtain a Court order allowing them to file an assignment in bankruptcy for the Estate and the bankruptcy trustee will then distribute the available funds amongst the creditors with proven claims in accordance with the Bankruptcy and Insolvency Act (Canada).

    Hope this helps.

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