Estate Beneficiary Rights to Information in Ontario

Waiting for news about an estate is hard, especially when the estate trustee is not returning calls. Many beneficiaries do not know what they are entitled to see or when to expect a payment.

This article explains the notice and accounting rights that Ontario law gives beneficiaries, what a reasonable timeline looks like, and what steps are open to you if you are not getting answers.

What the estate trustee is supposed to do

Estate trustees carry out the wishes set out in the will. Their duties include winding up the deceased person's affairs and paying taxes, bills and other debts. The estate is then distributed according to the will.

That means a beneficiary is usually paid last. Seeing nothing for a few months is not unusual, but a total lack of communication is a different matter.

Notice when probate is applied for

A person applying for probate, formally a certificate of appointment of estate trustee, must send or give a copy of the application form to everyone entitled to a share of the estate. This must be done before filing with the court.

• If a beneficiary is a minor or an incapable adult, the application may also need to be sent to the Office of the Children's Lawyer and the Office of the Public Guardian and Trustee.
• For a small estate of $150,000 or less (as of April 1, 2021), the signed application for a Small Estate Certificate must reach everyone entitled to a share 30 days before filing, and Form 74.1B confirms that notice was given.

If no probate certificate is applied for, no Estate Administration Tax is due. Some estates are handled without probate, so a lack of a court filing does not always mean something is wrong.

Asking for accounts

Under rule 74.15 of the Rules of Civil Procedure, any person who appears to have a financial interest in an estate may move for an order requiring the estate trustee to pass accounts. What an accounting would need to contain, and how the court would review it, depends on the estate, so it is worth confirming the details with a lawyer.

The notice of application to pass accounts (Form 74.44) states that objections must be served at least 35 days before the hearing. The court decides only the issues raised in filed notices of objection, and if no objection is filed the estate trustee may obtain judgment without a hearing. If you have concerns, do not let that date pass without getting advice.

How long should this take?

The Court of Appeal for Ontario has confirmed that estates are still presumed to be wrapped up within one year of death, often called the executor's year. When an estate is not simple, the court accepts that expecting it to finish in that time may be unreasonable.

There are legitimate reasons for delay. A legal representative who distributes assets before getting a CRA clearance certificate (Form TX19) is personally liable for unpaid amounts, up to the value of the assets distributed. A careful trustee may therefore hold back funds until tax matters are settled.

A surviving spouse has a special timeline. No distribution may be made from the deceased spouse's estate within six months of death unless the spouse consents in writing or the court authorizes it. When a spouse dies leaving a will, the surviving spouse must also elect either to take under the will or to receive the equalization entitlement, and the election must be filed with the Estate Registrar for Ontario within six months after the death. A spouse who does not file in time is deemed to have elected to take under the will or under the Succession Law Reform Act, unless the court orders otherwise on application.

What to do next

• Write to the estate trustee, politely and with a date, asking for a status update.
• Ask whether a probate application has been filed and whether you received your copy.
• Keep a record of every call, letter and email.
• Note how long it has been since the death and whether the estate seems complex.
• Speak with a lawyer about asking the court for an accounting if you are still getting no answers.

Frequently asked questions