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Online/Digital Bank Accounts when we pass away
December 6, 2017
9:54 pm
Loonie
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I guess it depends on how you define branch. To me, a branch implies that there is more than one physical facility.

December 7, 2017
9:30 pm
Norman1
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That sounds like the "registered office" and "branch offices" mentioned in Manitoba's Credit Unions and Caisses Populaires Act for their credit unions.

However, for a bank or federal trust company, the definition of a branch allows the head office to be a branch.

From Bank Act, section 2:

branch

(a) in respect of a bank, means an agency, the head office or any other office of the bank, and

(b) in respect of an authorized foreign bank, means an agency, the principal office or any other office of the authorized foreign bank in Canada at which is carried on the business in Canada of the authorized foreign bank; (succursale)

From Trust and Loan Companies Act, section 2:

branch, in respect of a company, means an agency, the head office and any other office of the company; (bureau)

December 7, 2017
10:24 pm
Loonie
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Thx. So, with Hubert at least, the executor issue should be minimal. The POA remains a sticking point.

December 8, 2017
8:44 am
frugal lady
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Loonie said
Thx. So, with Hubert at least, the executor issue should be minimal. The POA remains a sticking point.  

And have confirmed with Peoples in BC that a copy of Alberta Probate is sufficient.

December 8, 2017
10:47 am
Doug
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Norman1 said

There is always a branch for the account if it is with a bank or federal trust company. Bank Act, subsection 461(1). Trust and Loan Companies Act, subsection 447 (1).

Account statements should have it. EQ Bank has the branch address printed above my address on my monthly account statements.  

That's true, Norman, but I think, broadly and philosophically speaking, Loonie has a point. Perhaps we need to stop treating branch transits as the "owners" of accounts when they're so easily changed in terms of who managed the accounts internally? For instance, without knowledge to the customer, your bank could change your relationship manager and branch that manages your account without even needing your permission and it has no effect on how your transactions are handled. Banks are increasingly centralizing deceased account processing, which makes sense, less room for error, so why not just have them be handled more like Family Maintenance Enforcement Orders? Stop all notification of deceased accounts in branch and require the executor(trix) to get in touch with a specialized contact centre which would provide a special mailing address, fax number and the like. Besides, branches aren't staffed and equipped to handle these sort of things anymore. 🙂

Cheers,
Doug

December 8, 2017
10:49 am
Doug
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frugal lady said

And have confirmed with Peoples in BC that a copy of Alberta Probate is sufficient.  

Yes, I worked at a B.C. bank branch that dealt with an Alberta court order for a committeeship and an Ontario court granting a person as an "estate administrator" (I think the named executor in the person's will had pre-deceased the recently deceased and the will hadn't been updated) with no issues. 🙂

And, these were just copies of the court orders, I think. And since you're not concerned with trivial expenses like notary fees, if you go to even that step of getting everything certified as a true copy, I don't think you'll have any issues (or your executor(s), I should say). 😉

Cheers,
Doug

December 10, 2017
9:47 am
Norman1
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Doug said

That's true, Norman, but I think, broadly and philosophically speaking, Loonie has a point. Perhaps we need to stop treating branch transits as the "owners" of accounts when they're so easily changed in terms of who managed the accounts internally? For instance, without knowledge to the customer, your bank could change your relationship manager and branch that manages your account without even needing your permission and it has no effect on how your transactions are handled. Banks are increasingly centralizing deceased account processing, which makes sense, less room for error, so why not just have them be handled more like Family Maintenance Enforcement Orders? Stop all notification of deceased accounts in branch and require the executor(trix) to get in touch with a specialized contact centre which would provide a special mailing address, fax number and the like. Besides, branches aren't staffed and equipped to handle these sort of things anymore. 🙂

Cheers,
Doug  

There is probably a reason for the accounts of banks to be legally situated where the branch is.

I suspect that provincial jurisdiction over property and estates has something to do with it. Having the account situated where the branch is means the account is subject to provincial property and estate laws where the deceased resided and the nearby branch is instead of the provincial laws where the bank's head office is.

It also means an account holder can take legal action against the bank in the courthouse that covers both where the account holder lives and where the nearby branch is.

Banks are still free to centralize their handling of estates internally regardless. Just that the banks bear the cost of transmitting the requests to a central office instead of the estates.

I don't think the Family Maintenance Enforcement Orders offices model would work well for estates because there isn't one government agency to funnel estates through. Instead, estate requests come from all over the place from various estate lawyers and do-it-yourself executors.

December 10, 2017
11:05 am
Doug
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A few things to pack here. I'll address them in-line. sf-cool

Norman1 said
There is probably a reason for the accounts of banks to be legally situated where the branch is.

I suspect that provincial jurisdiction over property and estates has something to do with it. Having the account situated where the branch is means the account is subject to provincial property and estate laws where the deceased resided and the nearby branch is instead of the provincial laws where the bank's head office is.

My understanding is that provincial jurisdiction is based on where the deceased regularly lived at the time of their death. The fact that the deceased had assets in other provinces would not, and/or should not, require multiple applications before courts in different provincial jurisdictions. Some provincially-regulated FIs may require an order from their provincial court system, but this would not be the norm. Take the example of a self-directed discount brokerage account with, say, Scotia iTRADE or even an Odlum Brown full service investment account, they're domiciled and housed out of their corporate offices. Odlum Brown may have independent or corporately-owned financial advisory offices across the country but they're centrally housed. It would not be logical to assume this is different for banks vis a vis estates. I suspect the reason for different branches of account is simply that: they're based upon where the account was originally opened. In the "old days" of the not-too-distant-past, if you moved, often the same bank would re-open a new account for you at the new branch. This is no longer the case. So, in short, they were segmented by branch because, way back when, banks expanded their "market presence" by opening new branches (and also because they'd run out of account numbers with only only branch transit). However, had they wanted to, they could've opened them under a single transit. 🙂

It also means an account holder can take legal action against the bank in the courthouse that covers both where the account holder lives and where the nearby branch is.

Possibly true, but this is also another reason for further centralization and for new banks not to open branches outside their home province. 🙂

Banks are still free to centralize their handling of estates internally regardless. Just that the banks bear the cost of transmitting the requests to a central office instead of the estates.

First part, true. Second part, not true. Sending required documents will always be at the Estate's expense and the banks will likely still continue to charge various sundry fees, too. 🙂

I don't think the Family Maintenance Enforcement Orders offices model would work well for estates because there isn't one government agency to funnel estates through. Instead, estate requests come from all over the place from various estate lawyers and do-it-yourself executors.  

Also not true. Family Maintenance Orders aren't centrally administered. The Bank Act (and related Acts) requires only that regulated institutions designate certain offices for receipt of such orders, to prevent lawyers from hand delivering such orders to every branch. This is a good thing and I'd like to see a similar process for mortgage payouts, too. However, administration, including issuing of the Family Maintenance Orders, is done provincially. In B.C., they even have the FMEP program that is privately run by contractor Themis Management, a wholly-owned subsidiary of publicly-traded, U.S.-based MAXIMUS, which operates several state health care "exchanges" under the Affordable Care Act ("ACCA") and also operates B.C.'s Medical Services Plan, provincial prescription drugs registry PharmaNet and several provincially/federally funded WorkBC Centres in the southern Interior of B.C. In short, they're basically "B.C. government lite."

Cheers,
Doug

December 11, 2017
7:13 pm
Norman1
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Doug said
My understanding is that provincial jurisdiction is based on where the deceased regularly lived at the time of their death. The fact that the deceased had assets in other provinces would not, and/or should not, require multiple applications before courts in different provincial jurisdictions. …

That's not the case. Provincial probate courts do not have jurisdiction outside their province. The provincial government simply doesn't have the legislative power to give their probate courts power outside the province.

Apparently, one can have multiple non-overlapping limited wills that can be probated separately in different provinces, regardless of one's residence.

Just because Hubert doesn't require an Alberta-probated will to be re-sealed in Manitoba doesn't mean the Alberta probate courts have jurisdiction in Manitoba. It just means Hubert is willing to accept the risk a different will could be submitted and probated in Manitoba.

Some provincially-regulated FIs may require an order from their provincial court system, but this would not be the norm. Take the example of a self-directed discount brokerage account with, say, Scotia iTRADE or even an Odlum Brown full service investment account, they're domiciled and housed out of their corporate offices. Odlum Brown may have independent or corporately-owned financial advisory offices across the country but they're centrally housed. It would not be logical to assume this is different for banks vis a vis estates. I suspect the reason for different branches of account is simply that: they're based upon where the account was originally opened. In the "old days" of the not-too-distant-past, if you moved, often the same bank would re-open a new account for you at the new branch. This is no longer the case. So, in short, they were segmented by branch because, way back when, banks expanded their "market presence" by opening new branches (and also because they'd run out of account numbers with only only branch transit). However, had they wanted to, they could've opened them under a single transit.

The different financial institutions are different because they are governed by different laws. Can't assume they are similar. The banks are governed under the Bank Act. The brokers are governed under the securities laws of each province. The provincial credit unions are under yet another set of provincial credit union laws.

I'm not sure the chartered banks had a choice. The Bank Act gives the banks federal permission to operate. But, the Bank Act doesn't override provincial jurisdiction. Provinces can block non-conforming banks from operating within their provincial borders. Lots of examples of Québec doing just that.

December 11, 2017
10:59 pm
Doug
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Norman1 said
Apparently, one can have multiple non-overlapping limited wills that can be probated separately in different provinces, regardless of one's residence.

Just because Hubert doesn't require an Alberta-probated will to be re-sealed in Manitoba doesn't mean the Alberta probate courts have jurisdiction in Manitoba. It just means Hubert is willing to accept the risk a different will could be submitted and probated in Manitoba.

On the last part, fair enough and that's true what Hubert Financial is willing to accept that risk, though it's somewhat mitigated by them (likely) undertaking a national Wills Search. I realize wills don't have to be registered anymore (it's too bad), as it's a useful tool for checking for outstanding wills. Personally, I plan to register my will and also include a notation in my will that I plan to always register my wills, to ensure a wills search gets done by the probate courts. And, I imagine there's a narrow timeframe for someone to bring forth a newer, original will in a different province once a will is going through or has gone through probate in another province. 🙂

The different financial institutions are different because they are governed by different laws. Can't assume they are similar. The banks are governed under the Bank Act. The brokers are governed under the securities laws of each province. The provincial credit unions are under yet another set of provincial credit union laws.

I'm not sure the chartered banks had a choice. The Bank Act gives the banks federal permission to operate. But, the Bank Act doesn't override provincial jurisdiction. Provinces can block non-conforming banks from operating within their provincial borders. Lots of examples of Québec doing just that.  

I'm aware of the Bank Act and its regulatory jurisdiction but won't address specific claims further.

Quebec's somewhat of a regulatory "basket case" in that regard - and it's not right! I'm an ardent federalist in that regard, especially when it comes to trade and commerce-related matters, traditionally federal jurisdiction. I also think the Supreme Court of Canada erred gravely in law by not granting the federal government the ability to impose a national securities regulator on the province. So detrimental to consumers! 🙁

Hopefully, that decision will get overturned in a future ruling by different justices! 😉

Cheers,
Doug

December 12, 2017
4:40 am
Loonie
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I am not familiar with the ruling, but it is my understanding that, by definition, Supreme Court rulings can't be overturned.
However, subsequent to legislative changes, courts may make different rulings in future cases.

December 12, 2017
10:34 am
Norman1
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It would require an amendment to the constitution.

The Supreme Court reference was Reference re Securities Act, 2011 SCC 66.

The unanimous conclusion was the federal government did not have the constitutional authority in the area. Exclusive authority of the provinces in the area has long been protected under 92(13) of the British North America Act, 1867.

December 12, 2017
5:15 pm
Norman1
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Doug said

On the last part, fair enough and that's true what Hubert Financial is willing to accept that risk, though it's somewhat mitigated by them (likely) undertaking a national Wills Search. …

Not sure anyone can do a national search for wills. Most provinces don't have a wills registry. I know only of the BC wills registry.

If an unlimited will has been probated in another province, it is very likely that is the last will of the deceased. Probably very rare for someone to find a later will after that.

Without another will turning up, I can't imagine what Hubert could still be sued for in Manitoba for handing over money in accordance to that probated will.

Quebec's somewhat of a regulatory "basket case" in that regard - and it's not right! I'm an ardent federalist in that regard, especially when it comes to trade and commerce-related matters, traditionally federal jurisdiction. I also think the Supreme Court of Canada erred gravely in law by not granting the federal government the ability to impose a national securities regulator on the province. So detrimental to consumers! 🙁

Doesn't matter. The challenge is that regulating securities cannot be done with "trade and commerce" powers alone. Federal government and Ontario tried that approach and failed.

Securities regulation also needs the "property and civil rights" powers that were exclusively granted to the provinces under 92(13).

December 12, 2017
6:16 pm
Doug
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Loonie said
I am not familiar with the ruling, but it is my understanding that, by definition, Supreme Court rulings can't be overturned.
However, subsequent to legislative changes, courts may make different rulings in future cases.  

They are the final arbiter but there's nothing in law that saws different justices cannot reach a different conclusion at a future date. 🙂

Cheers,
Doug

December 12, 2017
7:00 pm
Loonie
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Doug said

They are the final arbiter but there's nothing in law that saws different justices cannot reach a different conclusion at a future date. 🙂

Cheers,
Doug  

...but only on a different case; and they would have to show how that case differs from the previous one, I think. I don't think they can just ignore a previous decision if the legislation has not changed. They could also refuse to hear a case, and would probably do so if they thought it was substantially the same as a previous one.

December 13, 2017
8:09 am
Norman1
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Not sure if there were any legal precedents set.

It wasn't an actual case that was appealed to the Supreme Court. The proposed legislation wasn't actually law.

Instead, it was a reference by the federal government asking the Supreme Court for its opinion on the proposed law:

Pursuant to s. 53 of the Supreme Court Act, the Governor in Council has sought an advisory opinion from the Court as to whether the proposed Securities Act set out in Order in Council P.C. 2010‑667 falls within the legislative authority of the Parliament of Canada.

The Supreme Court did hear from a long list of parties:

Solicitor for the Attorney General of Canada: Attorney General of Canada, Ottawa.
Solicitor for the intervener the Attorney General of Ontario: Attorney General of Ontario, Toronto.
Solicitors for the intervener the Attorney General of Quebec: Bernard, Roy & Associés, Montréal.
Solicitor for the intervener the Attorney General of New Brunswick: Attorney General of New Brunswick, Fredericton.
Solicitor for the intervener the Attorney General of Manitoba: Attorney General of Manitoba, Winnipeg.
Solicitor for the intervener the Attorney General of British Columbia: Attorney General of British Columbia, Victoria.
Solicitor for the intervener the Attorney General for Saskatchewan: Attorney General for Saskatchewan, Regina.
Solicitors for the intervener the Attorney General of Alberta: Fraser Milner Casgrain, Calgary; Attorney General of Alberta, Edmonton.
Solicitors for the intervener the Canadian Foundation for Advancement of Investor Rights: Paliare, Roland, Rosenberg, Rothstein, Toronto.
Solicitors for the intervener the Canadian Coalition for Good Governance: Davies Ward Phillips & Vineberg, Toronto.
Solicitors for the intervener the Investment Industry Association of Canada: Torys, Toronto.
Solicitors for the intervener the Canadian Bankers Association: Osler, Hoskin & Harcourt, Toronto.
Solicitors for the intervener the Ontario Teachers’ Pension Plan Board: Gowling Lafleur Henderson, Toronto.
Solicitors for the intervener Mouvement d’éducation et de défense des actionnaires: Paquette Gadler Inc., Montréal.
Solicitors for the intervener Barreau du Québec: Lavery, de Billy, Montréal.
Solicitors for the intervener the Institute for Governance of Private and Public Organizations: Fraser Milner Casgrain, Montréal.

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