An Executor Is Delaying the Estate: What Can Beneficiaries Do in Ontario?

Waiting for an estate to be settled is frustrating, especially when you hear little from the executor. Before assuming something is wrong, it helps to know what has to happen first and what a beneficiary can do if nothing seems to be happening.

This article walks through common reasons for delay, how to ask for information, and the Ontario court steps available to a beneficiary.

Why estates take time

Ontario's official guidance says the estate is distributed once assets have been liquidated and the funeral and burial expenses and any debts have been paid. Several steps can legitimately slow that down.

• Probate: if the deceased owned real property or assets held by a financial institution, the estate normally must be probated, although probate is not always required.
• Tax returns: the executor must file all required returns for the deceased and make sure any balance owing is paid before distributing the estate.
• Clearance certificate: the CRA acknowledges a request within 45 days, and the assessment can take up to 120 days.
• Creditors: a personal representative who gives the notices the court would have directed may distribute the assets without liability for claims they had no notice of at the time.

An executor who distributes without a clearance certificate may be personally liable for unpaid tax, up to the value of the assets distributed. So a careful executor may wait for it, and that is not necessarily a sign of bad faith.

Start with a clear written request

Begin politely. Ask the executor in writing for a status update, including whether probate has been applied for, what assets have been collected, which debts remain and when a distribution is expected.

• Ask whether a certificate of appointment has been issued.
• Ask whether the final tax return has been filed and when the clearance certificate was requested.
• Ask for a list of assets and any sales or offers.
• Set a reasonable date for a reply and keep a copy of every message.

Where a certificate of appointment has been issued, the estate trustee must file an Estate Information Return within 180 calendar days of receiving it. That gives you a useful point of reference when you ask about progress.

Court steps a beneficiary can use

If the executor does not respond or progress stalls, a person with a financial interest in the estate has options. They may move for an order requiring the estate trustee to file a statement of the nature and value of the estate's assets, give further particulars, or pass accounts. Such motions may generally be made without notice, except a motion for further particulars, which requires 10 days' notice to the estate trustee.

A beneficiary is an interested person who can compel accounts. Accounts filed with the court must include assets at the date of death, all money received, all liabilities, and a statement of the compensation the estate trustee claims.

If the named executor has not decided whether to act, any person who appears to have a financial interest may bring a motion for an order requiring that person to accept or refuse the appointment.

If the delay continues

Where the executor is not carrying out their duties, the Superior Court of Justice may remove a personal representative on any ground on which it may remove any other trustee, and appoint another proper person. Any person interested in the estate may apply.

A person with a financial interest may also apply for directions, which is a route used for disputes that stall the estate.

What to do next

Keep your tone factual, since a calm paper trail helps if a judge later looks at the delay. If a beneficiary is a child under 18, the Office of the Children's Lawyer may act on their behalf in estate matters.

• Send a dated written request for an update.
• Keep copies of replies, or note when none arrive.
• Find out which steps, such as probate or tax clearance, are still outstanding.
• Speak with an estate lawyer before bringing a motion, since the right step depends on the facts.

Frequently asked questions