Can an Executor Ask a BC Court for Directions?

Being an executor or administrator in British Columbia means making decisions that affect other people's money and property. Sometimes the right step is unclear: a creditor disputes a bill, a beneficiary has disappeared, or a co-executor wants to sell land and you disagree.

You do not always have to guess. The law gives personal representatives a way to ask the BC Supreme Court what to do. This article explains how that works, when it tends to help, and how it differs from passing your accounts.

This article covers the law of British Columbia.

What the court can be asked to do

An executor, administrator or trustee may petition the court for its opinion, advice or direction on a question about managing the estate, and does not need to start any other proceeding to do so. This comes from section 86 of the Trustee Act, and the Wills, Estates and Succession Act (WESA) applies it to personal representatives.

This sits alongside your ordinary powers. A personal representative has the same authority over the estate as the deceased would have had, subject to the will and other laws. A grant of probate or administration gives you exclusive authority to administer the estate. Most decisions are yours to make. Whether a particular question is worth taking to the court depends on your situation, so it is worth confirming with a lawyer.

Situations where directions can help

Whether a particular question suits a petition depends on the facts, but several recurring problems in the statute point to places where court guidance may be useful.

• Early distribution: you must not distribute within 210 days after the grant is issued unless the court orders otherwise. Early distribution can go ahead if all beneficiaries and wills-variation claimants consent, or, with no will, if all intestate successors entitled to a share consent.
• Pending disputes: even after 210 days, distribution needs court consent if a proceeding is under way about someone's status as a beneficiary, a wills-variation claim, or anything else that may affect the distribution.
• Disputed creditor claims: if you give notice disputing a claim, the claimant must start a court proceeding within 180 days. You may also publish a notice to creditors in the Gazette with a deadline of at least 30 days.
• Beneficiaries who cannot be found: if a beneficiary cannot be found within 12 months, you may sell the property gifted to them and hold the net proceeds in trust. Early distribution can also proceed if you set aside the unlocated beneficiaries' shares plus enough to cover variation claims, but you are liable for any loss unless you show everything required was set aside.
• Co-executors and land: a disposition of land by only one or some of several joint personal representatives is not valid without court approval. Where some co-executors renounce or do not join the probate application, the executors who obtained probate may act as if all had acted.

Why directions can protect you

Personal liability is the main reason executors seek guidance. If you distribute the estate while debts remain unpaid, you may be held personally liable for them. Before distributing property you control, you must also obtain a clearance certificate from the Minister of National Revenue. Distributing without one makes you personally liable for the unpaid tax, up to the value of the property distributed.

The law does offer some relief for mistakes. The court may excuse a trustee, wholly or partly, from personal liability for a breach of trust if they acted honestly and reasonably and ought fairly to be excused, and WESA section 143(1) applies this relief to personal representatives such as executors. That relief is discretionary, and it applies after something has gone wrong. Asking first, where the question is real, is generally a safer position than hoping to be excused later.

Directions compared with passing accounts

These two processes are easy to confuse. A petition for directions asks the court how to handle a question about managing the estate. Passing accounts is a review of what you have already done. A personal representative or anyone interested in the estate may apply for an order passing the accounts or fixing remuneration.

What to do next

If you are stuck on an estate decision, a few steps can help you decide whether to go to court.

• Write down the exact question you need answered and why it is uncertain.
• Gather the will, the grant, and records of assets, debts and any creditor or beneficiary correspondence.
• Note who else is affected, such as beneficiaries, co-executors and creditors.
• Hold off on distributing while the question is open.
• Speak with a lawyer about whether a petition is the right step and how to bring it.

The right path depends on the facts of your estate, so a lawyer can confirm whether asking the court is worthwhile or whether another approach, such as obtaining consents, would solve the problem.

Frequently asked questions