Category: Estates

When a Business Owner Dies: What Happens to the Company?

~ Alberta Estate and Family Law Blog ~ Leave a comment

For many business owners, the company is their largest asset and the source of their family’s income. Yet it is often the asset least addressed in estate planning. When an owner of an incorporated business dies, the executor is suddenly responsible for something that has employees, customers, bills and tax obligations, and that can’t simply be frozen while the estate is sorted out. Knowing how the law treats a business at death, and what documents can make the transition smoother, can make the difference between a business that survives and one that doesn’t.

The Company Doesn’t Die, but Its Owner Does

A corporation is a separate legal person, so it continues to exist after its owner dies. What the deceased owned was not the business itself but shares in the company. Those shares are personal property and form part of the estate. The executor named in the will steps into the deceased’s shoes as the holder of those shares, with the right to vote them, receive dividends and eventually transfer them to beneficiaries or sell them.

What does not pass to the executor is the deceased’s role as a director or officer. Those positions end on death. The executor becomes, in effect, the shareholder, but not automatically the person running the company. That distinction drives many of the practical problems that follow.

Does the Executor Need a Grant of Probate?

An executor’s authority comes from the will and exists from the moment of death. A grant of probate doesn’t create that authority; it confirms it, giving third parties a court-issued document they can rely on. Whether probate is actually needed therefore depends on who the executor has to deal with and whether they will accept the will alone.

For shares of a private company, the company itself controls its share register. If there are surviving directors who are comfortable recognizing the executor, they may be able to register the transfer of shares to the executor or beneficiaries without a grant, provided the company’s articles and any shareholder agreement allow it. In practice, however, many directors, lawyers and accountants will want to see a grant before registering a transfer, particularly where there is any risk of a later will surfacing or a challenge to the will.

Banks are often the deciding factor. If the company’s bank needs to update signing authority, or if the deceased also held personal accounts, investments or real estate, a grant of probate is frequently required regardless. The executor should assume probate will likely be needed and plan accordingly, while recognizing that in some closely held companies the shares themselves can be dealt with more informally.

For help with obtaining a Grant of Probate, click here.

Sole Shareholder vs. Multiple Shareholders

The situation is most difficult where the deceased was the only shareholder and the only director, which is common for small owner-operated businesses. On death, the company has no one with authority to act. No one can sign cheques, authorize payroll, sign contracts or pass resolutions. The company is essentially paralyzed until the executor, voting the deceased’s shares, elects a new director. Because the bank and others will want proof that the executor has authority to vote those shares, a grant of probate is often required before the new director can be recognized. That can take weeks or months, during which the business is exposed.

Where there are multiple shareholders and directors, the company can usually keep operating, because surviving directors still have authority to manage its affairs. The problems here are different. The deceased’s shares pass to the estate, and ultimately to beneficiaries who may be a spouse or children with no interest or experience in the business. Surviving shareholders may find themselves in business with people they didn’t choose, while the estate may be left holding a minority interest in a private company that has no ready market and pays no dividends. Disputes over value, control and whether anyone is obligated to buy the shares are common.

Why Unanimous Shareholder Agreements Matter

A unanimous shareholder agreement (USA) is the most effective tool for addressing these problems in advance. A well-drafted USA can set out exactly what happens to a shareholder’s shares on death or incapacity, typically requiring or allowing the surviving shareholders or the company to buy them. It can establish a valuation method so that price is not left to negotiation between grieving family members and business partners. It can also provide for funding, often through life insurance held on each shareholder, so the purchase doesn’t drain the company or the survivors.

For the estate, this provides certainty and liquidity: the family receives fair value in cash rather than an illiquid minority stake. For the surviving owners, it protects control of the business. Without a USA, both sides are left to rely on the company’s articles, which usually say little beyond restricting share transfers, and on goodwill that may not survive a difficult negotiation.

Keeping the Business Running

The practical pressures begin immediately. Employees must be paid, and the company remains responsible for remitting source deductions and GST. Directors can be personally liable for unremitted amounts, which is one reason new directors must be appointed quickly and must understand what they are taking on. Suppliers, landlords and lenders need to be dealt with, and leases, licences and loan agreements should be reviewed, since some contain provisions triggered by an owner’s death or a change of control.

Much of the knowledge needed to run a small business also lives in the owner’s head: passwords, key customer relationships, pricing and the location of important records. An executor who has to reconstruct that information from scratch is at a serious disadvantage. Tax is another significant issue. On death, the deceased is generally deemed to have disposed of their shares at fair market value, which can trigger a large capital gain. Post-mortem tax planning can reduce or avoid double taxation, but it is time-sensitive and requires early advice from an accountant.

The Importance of Planning

Almost every one of these problems can be reduced with planning. A will should specifically address the business: who the executor is, whether they have the skills to deal with a company, and whether they have express powers to hold shares, act as a director or appoint directors, continue the business and decide when to sell.

An enduring power of attorney matters too, because incapacity can be just as disruptive as death. An attorney can generally deal with the person’s shares as property, but cannot step into the role of director, since that office is personal. Business owners should consider having more than one director or a clear plan for appointing a replacement.

Finally, where there are business partners, a unanimous shareholder agreement should work hand in hand with each owner’s will and power of attorney, so that the documents point in the same direction rather than contradicting each other.

A business can survive the death of its owner, but only if the owner has planned for it. Reviewing your will, power of attorney and shareholder arrangements together is one of the most valuable steps a business owner can take for their family, employees and partners.

If you are a business owner in Alberta, it is important that you seek legal and accounting advice to address these important documents.

This article provides general information only and is not legal advice. Please consult a lawyer about your specific circumstances.

Why you need to talk to your wills and estates lawyer about your personal directive

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A personal directive is a legal document that allows you to name someone to act as your agent to make personal decisions on your behalf in case you lose the capacity to make decisions for yourself.

The types of personal decisions that an agent may be required to make on a person’s behalf may include the following:

  • health care decisions
  • where the individual will live, i.e., at home or in a long term care facility
  • with whom the individual will live
  • what sorts of activities an individual can participate in

Obviously, the most critical decisions often relate to health care and where someone will live once they lose capacity. A properly drafted personal directive should include language that allows your agent to carry out your wishes in regards to your personal matters if you lose capacity. For example, if your goal is to remain living at home for as long as you are capable of independently doing so, your personal directive should include language to that effect. Without that language, your agent may be left guessing as to what you would want to happen when those circumstances inevitably arise.

A personal directive is not just something that should be in place for the elderly. Families with young children should have this document in place in case both of the parents are injured in a common accident that renders both of hem incapable of taking care of their children for a period of time. A guardianship clause in the personal directive would allow those young children to be cared for properly during the period of incapacity.

For a consultation to review or discuss your personal directive, at Field Law, we have a team of Wills and Estates lawyers in Edmonton and Calgary who are are available to assist you.

Probating a Will in Alberta

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One of the key tasks of an executor named in a Will is to determine whether the deceased’s Will needs to be probated.

What is probate? Simply put, it is a legal process for determining that the Will is valid. It confirms the authority of the person appointed in the Will as the executor to be able to carry out the administration of the estate in accordance with the terms of the Will.

The process in Alberta is quite straight forward. The named executor will be required to submit to the Court the deceased’s original Will, along with a number of other Court approved forms, providing information about the deceased, the beneficiaries and the assets and liabilities of the estate. After a few weeks, the Court will issue a document called a Grant of Probate (or a Grant of Administration if there is no Will). This document is proof of the executor’s authority to be able to deal with banks and other agencies such as land titles offices, in order to administer the deceased’s assets.

While the probate process is quite straight forward, no two estates are alike and therefore, it is advisable for an executor to obtain advice prior to initiating the process themselves. Errors in the probate application can result in lengthy delays in obtaining the appropriate Grant. A probate lawyer can help you identify any potential issues your particular case may need to address and help you avoid unnecessary delays.

Finally, not every estate will require probate. Assets held in joint ownership with another person will often not require probate if the deceased’s intent was for those assets to pass to the surviving joint owner upon death. In addition, assets such as RRSP’s or life insurance, where a beneficiary is designated, will not require probate. An executor should check with financial institutions and other third parties who hold estate assets to determine whether they require a Grant of Probate prior to releasing the assets.

Do you have questions about your unique situation? Feel free to reach out to me.

Surviving spouse loses fight to use reproductive material taken from deceased husband due to lack of consent

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In L.T. v D.T. Estate (Re), 2019 BCSC 2130, the BC Supreme Court dealt with a difficult and challenging application advanced by a surviving spouse for the right to use her deceased husband’s sperm for the purposes of future reproductive use.

The deceased, referred to in the decision simply as Mr. T, died suddenly on October 2, 2018. At the date of his death, the deceased and his wife had been married for three years and the two had recently become parents. It was known to all those who knew the couple that they wanted more children.

The day after her husband’s death, the deceased’s wife contacted a fertility clinic about retrieving her husband’s sperm for future reproductive use and was told that a retrieval of this kind should occur within 36 hours of death and that a court order was required. On hearing an emergency application, the court authorized the removal of the husband’s sperm but ordered that it could not be released, distributed, or used until further order of the court.  A further hearing was ordered to address the underlying legal issues.

The decision ultimately rested on the Court’s interpretation of certain provisions of the Assisted Human Reproduction Act, S.C. 2004, c. 2 (the “AHRA”) and its regulations the Assisted Human Reproduction (Section 8 Consent) Regulations, SOR/2007-137 (the “Regulations”).

Section 8(2) of the AHRA provides:

Posthumous use without consent

(2) No person shall remove human reproductive material from a donor’s body after the donor’s death for the purpose of creating an embryo unless the donor of the material has given written consent, in accordance with the regulations, to its removal for that purpose.

The deceased died without a Will and had not provided written consent to the posthumous removal of his reproductive material for the purpose of creating an embryo.

The spouse argued that the court should adopt a broad-based common law and statutory understanding of the term “consent” when interpreting the relevant provisions of the AHRA. However,  the Court stated that it could not rely upon the common law where it directly contradicts, or is qualified by, the clear and unequivocal legislative language before it.  The language of section 8 of the AHRA is clear. It requires the donor to provide written consent.

Furthermore, the Regulations required the consent to be informed, such that the donor knew that (a) their reproductive material would be posthumously removed and (b) that their reproductive material would be removed specifically for the posthumous reproductive use of their spouse or common-law partner.

The surviving spouse also argued that there was a legislative gap in the AHRA in that the legislation did not contemplate, or provide for, the type and form of consent that should be required of a donor where the donor has died in sudden and unexpected circumstances, but has previously clearly indicated through their words and actions, while living, their desire to have children with their spouse. 

The court concluded that section 8(2) of the legislation covered all posthumous removals of a donor’s reproductive material after death and that there was no legislative gap. The court stated that while in rare and limited circumstances, it may address and provide a solution for situations unanticipated by the legislature at the time of enactment, that was not the case here as the wording of section 8(2) explicitly requires written consent from a donor. There was nothing to suggest that the absence of a provision dealing with a sudden and unexpected death of a donor was a legislative oversight.

Finally, the surviving spouse argued that the sperm removed and stored was property which vested in her. The Court rejected this argument as well stating that the posthumous order authorizing removal and storage for the specific purpose of permitting the parties to make further submissions in this case could not be seen as providing a property interest for the surviving spouse.  The reproductive material was held under the supervision of the court and did not vest a property interest to anyone.

Although sympathetic to the surviving spouse, given the clear legislative requirement of written and informed consent by the donor, the Court was unable to grant the spouse’s request to use the reproductive material to create an embryo at a later date.

This case highlights the importance of ensuring that you have an updated Will and other estate planning documents in place, no matter what your age. Advances in technology, particularly reproductive technology, are creating new opportunities for couples to have children, later in life and even after the death. Any couple that may be contemplating having children, whether now or in the future, should review the provisions of the AHRA and the Regulations and take the proper steps to ensure that their wishes are honoured after death.