What Can a Beneficiary Do If an Executor Leaves Assets Out of a BC Estate?

You may be a beneficiary who expects an estate to hold more than the executor has reported. A bank account, a vehicle, a property or a debt owed to the deceased may seem to be missing. It can be hard to tell whether this is an honest oversight, slow work or something more serious.

British Columbia law gives beneficiaries several ways to test what the executor has done. This article explains those tools in plain language. Which one fits depends on your facts, and a lawyer can help you choose.

This article covers the law of British Columbia.

The executor's duty to look for assets

The Wills, Estates and Succession Act (WESA) requires a person applying for a grant to make a diligent search and inquiry to find the property and liabilities of the deceased person. You can use that duty as a yardstick. If an asset you know about is not listed, it is fair to ask what searches were done.

Before taking formal steps, it often helps to ask the executor in writing about the missing item. Keep your own list of what you believe the deceased owned, and note why you believe it.

Using accounts to test what the executor reports

Under the Trustee Act, executors, administrators and trustees under a will must generally obtain an order for passing their first accounts within two years of the grant or appointment, unless the exceptions in section 99 apply. Preparing accounts that show assets, receipts, disbursements and distribution, and getting the court's approval of them, is part of an executor's job. Accounts are where gaps tend to show up.

If a beneficiary serves notice requiring it, the representative must pass accounts annually, within one month of the anniversary. A trustee who fails to pass accounts as required may be called before the court to explain why.

Section 99 has exceptions, and the details of how notice works matter, so have a lawyer confirm how it applies to your estate.

Suing for property the executor will not pursue

Sometimes the executor knows about an asset or a debt owed to the deceased but will not act. With leave of the court, a beneficiary or intestate successor can sue on the estate's behalf to recover property or rights owed to the deceased, or defend proceedings against the estate.

Leave depends on several things:

• You made reasonable efforts to get the personal representative to act.
• You gave notice to the required parties.
• You are acting in good faith.
• The proceeding is necessary or expedient to protect the estate.

Asking the court to remove the executor

A person with an interest in an estate may apply to the court to remove or pass over a person entitled to act as personal representative. The court may do so, subject to the will, if it considers the person should not act. Listed grounds include being unable or unwilling to perform duties in a way that hampers administration of the estate.

If the court removes the executor, it must generally appoint a substitute who consents to act, unless administration is complete or a new appointment is unnecessary. The former representative's grant is revoked, and the substitute takes over that person's authority and duties. Removal as personal representative does not by itself remove the person as trustee of a trust under the will; that needs separate relief.

Time limits

A court proceeding generally must not be started more than 2 years after the day the claim is discovered. Discovery is the first day you knew or reasonably ought to have known of the loss, its cause, the defendant's act, and that a court proceeding is appropriate.

There is also an ultimate limitation period of 15 years from the act or omission. If the act or omission was wilfully concealed, it is deemed to have taken place on the discovery date. Section 12 of the Limitation Act has special rules for fraud and trust claims, and the trustee bears the burden of proving that such a claim was discovered. Because these rules are technical, get advice early rather than assuming you have time.

What to do next

• Write down which assets you think are missing and why.
• Gather statements, tax records, property documents and any inventory you have received.
• Ask the executor in writing for an explanation and for accounts, and keep copies.
• Note the date you first learned of the problem.
• Speak with a lawyer about notice for accounts, leave to sue, or removal.

Frequently asked questions