- Except by court order, a personal representative must not distribute the estate within the 210 days after the grant is issued, though consent can allow it.
- An executor who distributes assets without first getting a CRA clearance certificate is personally liable for unpaid taxes, up to the value of the assets distributed.
- Waiting protects everyone, so early payments are usually done only after careful advice.
Estates often take longer than beneficiaries expect, and bills do not wait. If you need money before the estate is finished, you may wonder whether the executor can pay you part of your share now.
In British Columbia, there is a rule that generally holds back distribution, along with several exceptions. This article explains them and the risks the executor carries.
This article covers the law of British Columbia.
The 210-day rule
Except by court order, a personal representative must not distribute the estate within the 210 days after the representation grant is issued. The period runs from the grant, not from the date of death. If the estate has a will, it may be distributed within the 210 days if all beneficiaries with an interest and all persons who could bring a wills variation claim consent. A spouse or child claiming that the will does not make adequate provision for them must start the proceeding within 180 days from the date the representation grant is issued in BC.
When early payment can be allowed
| Situation | Exception |
|---|---|
| Estate with a will | Early distribution if all beneficiaries with an interest and all persons who could bring a wills variation claim consent |
| No will | Early distribution if all intestate successors entitled to a share consent |
| Some people cannot be found | The representative sets aside their gifts or shares, plus enough to satisfy any wills variation claim |
If the representative does not set those amounts aside, they are personally liable for resulting loss. Even after the 210 days, distribution needs court consent if a proceeding is under way about who is a beneficiary, if wills variation relief is being sought, or if other proceedings may affect distribution.
Risks of paying too early
- Creditors. A representative may publish a notice in the Gazette asking creditors to present claims within a stated period of at least 30 days, and is not liable for claims not presented in time. That protection does not affect a creditor's right to recover estate assets from whoever received them, so a beneficiary may have to give property back.
- Taxes. A legal representative who distributes assets without a CRA clearance certificate is personally liable for unpaid amounts, up to the value of the assets distributed. The certificate is requested on Form TX19.
- Shortfalls. If the estate cannot pay all debts and gifts, WESA section 50 sets the order in which property is reduced.
- Minors. If a minor is a beneficiary and there is no trustee or trust, the personal representative must transfer the minor's interest to the Public Guardian and Trustee in trust for the minor.
Why the executor may say no
An executor who distributes assets without first getting a CRA clearance certificate is personally liable for unpaid amounts, up to the value of the assets distributed. The certificate should be requested only after all required returns are filed, notices of assessment are received, and all amounts owing are paid or secured.
Under the Trustee Act, a person beneficially interested in the property can serve notice requiring annual accounts. An executor, administrator or trustee may also apply by petition to the court for directions on managing the estate or trust property, without starting any other proceeding. How these steps apply to your situation depends on the details, so it is worth confirming with a lawyer.
What to do next
- Ask the executor in writing for a status update and a timeline.
- Find out whether a grant has been issued and when.
- Ask whether other beneficiaries would consent to an early payment.
- Remember any early payment may have to be returned if debts surface.
- Speak with a wills and estates lawyer before agreeing to an advance.
Frequently asked questions
Can I get money before probate is finished?
Generally the estate cannot be distributed within the 210 days after the grant is issued unless a court orders it or the required people consent. Whether an advance is safe depends on the debts, taxes and claims.
What if everyone agrees?
With a will, all beneficiaries with an interest and all persons who could bring a wills variation claim must consent. With no will, all intestate successors entitled to a share must consent.
Can I be made to return money?
A creditor's right to recover estate assets from whoever received them is not removed by the creditor-notice process, so a beneficiary may have to give property up to an unpaid creditor.
Is the executor personally at risk?
Yes, in some cases. A representative who distributes without a CRA clearance certificate is personally liable for unpaid amounts, up to the value of the assets distributed.
Sources
- Wills, Estates and Succession Act, SBC 2009, c. 13 (BC Laws) — bclaws.gov.bc.ca
- Trustee Act, RSBC 1996, c. 464 (BC Laws) — bclaws.gov.bc.ca
- Canada Revenue Agency – Clearance certificate — canada.ca
Links go to official government, court and regulator pages. The law changes — confirm you are reading the current version.
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