Can an Executor Be Compelled to Act If They Delay Probate in Ontario?

Waiting on an executor is frustrating, especially when nothing seems to be happening. Delay does not always mean wrongdoing, but it can leave the estate stuck.

This article sets out the options Ontario provides: talking to the executor first, having them step aside, and asking the court to remove them.

Start with the practical steps

Before going to court, find out why things are slow. Executors are often overwhelmed, waiting on documents, or unsure what to do. A calm written request can help.

• Write to the executor asking for a status update and a timeline.
• Ask whether they have applied for the certificate of appointment, or plan to.
• Offer to help gather documents.
• Keep a dated record of every request and reply.
• Ask whether they would prefer to step aside.

Delay can have real costs. For example, the CPP death benefit application should be made within 60 days of the date of death.

It also helps to know the usual steps, so you can tell whether a delay is a normal part of the process or a sign of a problem. Some of the points that often come up are below.

• An Ontario probate application is filed in the court for the county or district where the deceased lived at death. If the deceased lived outside Ontario, the application is made at the courthouse where they owned Ontario property.
• A bond is required with the application when the deceased died without a will, when the applicant was not named as estate trustee, or when the applicant does not live in Ontario, another Canadian province or territory, or a Commonwealth country. A judge can order that no bond is required.
• A Small Estate Certificate can be applied for if the estate is valued at up to $150,000.

If the executor declines or cannot act

If a named estate trustee declines or cannot act, the beneficiaries may nominate another person to act as estate trustee. An executor who wants out can also apply to the court, because a removal order can be made on the application of an executor who wants to be relieved of the office.

The Trustee Act lists grounds for replacing a trustee, including death, remaining out of Ontario for more than twelve months, wishing to be discharged, refusing to act, being unfit or incapable of acting, conviction of an indictable offence, and being bankrupt or insolvent.

Asking the court to remove the executor

The Superior Court of Justice may remove a personal representative (an executor or administrator) on any ground on which it may remove any other trustee, and may appoint a replacement. A person interested in the estate, such as a beneficiary, can apply, as can a co-executor.

The Court of Appeal for Ontario has said that removing estate trustees chosen by the deceased is a serious matter. How a court would view delay in your situation depends on the facts, so it is worth confirming with a lawyer. A lawyer can tell you how strong your case is.

If there are several executors and one is removed, the court need not appoint a replacement, and the estate may continue with the remaining personal representatives.

Other consequences of delay

An executor must keep accurate records of the estate's assets and transactions. If accounts are passed, notice goes to beneficiaries and other interested persons, and the estate trustee swears an affidavit verifying the accounts. If no notice of objection to the accounts or the compensation claimed is received once the objection period has expired, judgment can be given unopposed.

An estate trustee is entitled to a fair and reasonable allowance for their care, pains, trouble and time, as allowed by a judge of the Superior Court of Justice. A beneficiary who is unhappy with the compensation claimed should know that judgment can be given unopposed once the objection period has expired with no notice of objection to the compensation.

Some delay is caused by steps that must happen before the estate can be shared out. Under a will, the estate is distributed once the assets have been liquidated and the funeral and burial expenses and any debts have been paid. Before distributing any property, the legal representative of a deceased taxpayer must also obtain a clearance certificate from the Minister, and one who distributes without it is personally liable for the unpaid tax, up to the value of the property distributed.

The certificate is requested on Form TX19 after the required returns are filed and assessed and all income taxes are paid or secured. An estate with a GST/HST number also needs Form GST352 for clearance. Asking the executor where these steps stand can tell you whether the estate is moving or stuck.

What to do next

Keep your communications polite and in writing. If the executor will not respond or act, speak with a lawyer about whether to ask them to step aside, nominate another person, or apply to the court. Do not delay too long, since the estate may be earning no return and bills may be accumulating.

You can also check whether benefits or accounts need attention. After a death, Canada Post can be contacted to forward mail, and the CRA should be contacted as soon as possible to avoid repayment of benefits.

Frequently asked questions