- A beneficiary who wants to object to the accounts must file and serve a Notice of Objection (Form 42) at least 10 days before the passing date, or be treated as consenting.
- The executor must apply to pass accounts within 18 months of the grant unless the court orders a longer period, and the hearing is set at least 45 days after the application is received.
- Signing a release or consent can let the executor skip a formal accounting, so think carefully before you sign.
If you are a beneficiary and you are unsure how an estate has been handled, you are not powerless. In Nova Scotia the executor, called a personal representative, must keep records and can be asked to account to the Probate Court for what they did. That process is called passing the accounts, and it is where a beneficiary can raise concerns.
The steps and deadlines are tight, and staying silent can count as agreeing. This article walks through how the process works, what a Notice of Objection is, what the court can do, and what to think about before signing anything. Estate records are kept at the Registrar's office in each district, and the current rules and forms are worth confirming with a lawyer before you act.
This article covers the law of Nova Scotia.
What the executor owes you along the way
Within 30 days after a grant is issued, the personal representative must serve notice of the grant on each person who is or may be entitled to share in the estate. The notice uses Forms 24 to 27, proof of service is due within 60 days, and the registrar may extend these times.
The personal representative must also keep accurate records of all the property and debts of the estate. Those records are what the accounts are built from, so they matter if you later question a payment or a missing asset.
Within three months of the grant, the personal representative files a full inventory in Form 29. The estate is valued as of the date of death.
When and how accounts are passed
The personal representative must apply to pass accounts within 18 months of the grant, unless the court orders a longer period. An application is also required when the representative seeks a discharge or when the court orders it.
The application uses Form 39 (with a hearing) or Form 40 (without a hearing). The representative's affidavit (Form 43) must be filed at least 10 days before the passing date, and the hearing date is at least 45 days from receipt of the application.
- Form 39: application to pass accounts with a hearing.
- Form 40: application to pass accounts without a hearing.
- Form 43: the personal representative's affidavit, filed at least 10 days before the passing date.
Filing a Notice of Objection (Form 42)
If you are an interested person and you object to the accounts, you file a Notice of Objection in Form 42 and serve it at least 10 days before the passing date. If you do not, you are treated as consenting.
Your Form 42 deadline is counted back from the passing date, so it is worth working out that date as soon as you know it has been set. Do not leave it to the last week. Write down what concerns you, such as expenses that seem high, assets that do not appear, or delays, and keep any documents you have.
Contested matters go to a judge rather than being handled only by the registrar. A contentious application starts with a Notice of Application (Form 45) and an affidavit (Form 46). A lawyer can tell you whether your situation calls for those forms as well.
What the court can do and the question of commission
The court's powers include requiring amendments to the accounts, setting the commission, and appointing an accountant.
A commission under the Probate Act covers all of the personal representative's services in completing the administration. In setting it, the court may consider the size of the estate, the care and responsibility involved, the time spent, the skill shown and the success of the administration. Beyond actual and necessary expenses, the commission cannot exceed five percent of the amount received, and the court sets it.
| Situation | What generally applies |
|---|---|
| No fee in the will | Court sets a commission up to five percent of the amount received |
| Fee set out in the will | It generally replaces the statutory commission unless the executor renounces it within the time limit |
| Fee agreed outside the will | Binds neither the court nor beneficiaries unless written into the will |
Releases, consents and appeals
An accounting can be dispensed with if the personal representative files an affidavit that accounting is not required (Form 37) with a consent (Form 38), and a release (Form 36) from beneficiaries. If you sign, you may be giving up the chance to have the accounts reviewed, so read it closely and ask questions first.
If you are unhappy with a registrar's decision, an appeal under s. 93 of the Probate Act must be started no later than 30 days after the decision or order.
What to do next
- Find the date of the grant and count 18 months to see when accounts should be passed.
- Ask the personal representative for the estate records and accounts, and keep copies.
- Note the passing date and count back 10 days to your deadline for Form 42.
- Do not sign a release or consent until you understand what you are giving up.
- Confirm the current forms and deadlines with a lawyer, because the details can change over time and how they apply depends on your situation.
- Speak with a Nova Scotia lawyer early, because the deadlines are short.
Frequently asked questions
What happens if I do not file a Notice of Objection?
If you are an interested person and you do not file and serve a Notice of Objection, you are treated as consenting to the accounts. The notice must be served at least 10 days before the passing date.
Can the executor take whatever fee they want?
Not automatically. The court sets the commission, and beyond actual and necessary expenses it cannot exceed five percent of the amount received. If the will sets out a fee, that fee generally replaces the statutory commission unless the executor renounces it within the time limit. A fee agreed outside the will does not bind the court or beneficiaries unless it is written into the will.
Does the executor have to pass accounts at all?
Generally the application must be made within 18 months of the grant unless the court orders a longer period. Accounting can be dispensed with using Forms 36 to 38, which is why you should think before signing a release.
Who decides a contested accounts dispute?
Contested matters go to a judge. A contentious application starts with a Notice of Application (Form 45) and affidavit (Form 46).
Sources
- Courts of Nova Scotia – Probate Court — courts.ns.ca
- Probate Court Practice, Procedure and Forms Regulations — novascotia.ca
- Probate Act, s. 76 (as reported via Probate Act, SNS 2000, c 31 and Department of Justice guidance) — novascotia.ca
- Probate Act, SNS 2000, c 31, s. 77 — nslegislature.ca
Links go to official government, court and regulator pages. The law changes — confirm you are reading the current version.
This is a wills & estates question
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