- Under a will, the estate is distributed once the assets are liquidated and the funeral and burial expenses and debts are paid, and how a support claim fits in depends on the facts, so confirm with a lawyer before distributing.
- An executor who distributes without clearing tax with the CRA can be personally liable for unpaid tax up to the value distributed.
- Estate trustees must keep accurate records of the estate's assets and transactions, and the court may relieve a trustee who acted honestly and reasonably and ought fairly to be excused.
You are the executor, and a spouse or child of the person who died says the estate should provide for their support. The will may say something quite different. It is natural to wonder whether you can keep going with the estate, pay the other beneficiaries, or whether everything must stop.
This article explains in plain terms how a support claim fits into an executor's job. The rules that decide who can claim, and how much a court might order, turn on the facts of each family, so this is a place to speak with a lawyer early.
What a dependant support claim means for an executor
Family members may raise a claim about support from the estate, and what that means for you depends on the family and the facts. It lands on the executor's desk, even though the executor did not create it. How it applies to your situation depends on the circumstances, so it is worth confirming with a lawyer.
Who qualifies, how long the claim can be brought, and how a court approaches it are questions of law that depend on the relationship and the circumstances. A lawyer can confirm these for your situation. What you can do right now is understand how the claim interacts with your usual duties.
Why it affects when you distribute
Under a will, Ontario guidance says the estate is distributed once the assets have been liquidated and the funeral and burial expenses and any debts have been paid. A support claim may affect what is left for the people named in the will, but how it applies depends on your situation, so it is worth confirming with a lawyer. Before you distribute anything, ask the lawyer how any claim fits in.
There are protections for executors who follow the notice process for creditors. After giving the required notice and once the period has expired, an estate trustee may distribute having regard only to the claims they have notice of, and they are not liable for claims they had no notice of at that time. Even then, a creditor or claimant keeps the right to follow the estate's assets into the hands of the people who received them. Whether a particular family support claim is treated the same way is something to confirm with a lawyer rather than assume.
Tax is a separate hurdle. Before distributing any property, the legal representative must obtain a clearance certificate from the Minister. One who distributes without it is personally liable for unpaid tax, up to the value of what was distributed.
Family members who often raise these claims
Spouses and children are the people most likely to be affected, and their position can differ depending on whether there is a will and how they are related to the person who died.
| Situation | What to know |
|---|---|
| No will, surviving spouse or common-law partner | The spouse or common-law partner usually has the first right to apply for a certificate of appointment. |
| No will, common-law spouse | A common-law spouse may apply to administer the estate but does not inherit under the Succession Law Reform Act when there is no will. |
| Child under 18 entitled to a share | A child entitled to $35,000 or more must generally have the money paid into court, unless a will or beneficiary designation names a trustee or a judge has appointed a guardian of property. |
| Child receiving less than $35,000 | It can be paid to the parent the child lives with or the person with lawful custody, who holds it until the child turns 18 or the age stated in the will. |
| Minor, unborn or unascertained beneficiaries and accounts | The Office of the Children's Lawyer must be served with an application to pass accounts where there are minor beneficiaries, and should be served where there is an unborn or unascertained interest. |
Protecting yourself as executor
Executors who act honestly and carefully are in a better position if something goes wrong. The court may relieve a trustee who is personally liable for a breach of trust, wholly or partly, if the trustee acted honestly and reasonably and ought fairly to be excused, including for not obtaining the court's directions. That is a discretion, not a promise, so it is better to avoid needing it.
- Keep accurate records of the estate's assets and every transaction.
- Hold off on final distributions until you have had legal advice about the claim.
- Keep any written communication from the family member or their lawyer.
- Do not ignore deadlines in any court papers you receive.
- Do not pay yourself or others from the estate on the assumption that the claim will fail.
- Speak to an accountant about the clearance certificate before any distribution.
What to do next
Start by collecting the will, any claim letter, a list of assets and debts, and the names and ages of family members. Then speak with a lawyer who handles estates before making any distribution, partial or final.
Ask the lawyer how the claim affects timing, whether you should keep a holdback, and whether court directions would be sensible. How much to hold back depends on the facts. If a beneficiary cannot be found or paid, the court can allow trust money to be paid into court.
Frequently asked questions
Can I still distribute to the beneficiaries named in the will?
It depends on the claim and the size of the estate. Distributing too early can leave you exposed, so get legal advice first. You must also obtain the CRA clearance certificate before distributing any property.
Can I be personally responsible if I distribute and a claim succeeds?
Possibly, depending on the facts. If you gave the required notice for creditors to send in claims and that period has expired, you are not liable for claims you had no notice of when distributing, but a claimant can still follow assets to the people who received them. Do not assume a family support claim is treated the same way, because a lawyer can explain how that applies to a support claim.
Does a common-law partner have a claim if there is no will?
A common-law spouse may apply to administer the estate but does not inherit under the Succession Law Reform Act when there is no will. Whether they can bring a separate support claim is a question for a lawyer.
Can the court help me decide what to do?
A lawyer can tell you whether asking the court for directions makes sense. The court may also relieve a trustee who is personally liable for a breach of trust if the trustee acted honestly and reasonably and ought fairly to be excused.
Sources
- R.R.O. 1990, Reg. 194: Rules of Civil Procedure (e-Laws) — Ontario e-Laws
- Ontario.ca – The Office of the Children's Lawyer and estates and trusts matters — ontario.ca
- Ontario.ca – Administering estates — ontario.ca
- Trustee Act, R.S.O. 1990, c. T.23 (e-Laws) — Ontario e-Laws
- Income Tax Act, R.S.C. 1985, c. 1 (5th Supp.), s. 159 — Justice Laws (federal)
- Ontario.ca – Paying money into, and out of, court — ontario.ca
- Ontario.ca – Apply for probate of an estate — ontario.ca
Links go to official government, court and regulator pages. The law changes — confirm you are reading the current version.
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