What Happens If an Executor Misuses Estate Money in Saskatchewan

Waiting on an estate is hard enough without worrying that the person in charge is spending the money on themselves. Beneficiaries often notice small things first: no updates, delays, missing paperwork or sudden large purchases.

This article explains what Saskatchewan expects of an executor, the steps beneficiaries can take to get answers, and the evidence worth gathering. Whether a particular act is misuse, and which remedy fits, depends on the facts and is best confirmed with a lawyer.

This article covers the law of Saskatchewan.

What an executor is expected to do

An executor is a fiduciary in plain terms: someone trusted to manage property for other people. The province lists the executor's common duties, and several of them speak directly to how money should be handled.

• Identify, locate, secure, value and insure the estate's assets.
• Deposit estate money in an estate account.
• Pay funeral bills and pay debts by priority.
• Publish a Notice to Creditors.
• File the required tax returns and obtain a CRA Final Clearance Certificate.
• Account to beneficiaries within two years.

Debts of the deceased are paid from the estate and must be paid before any gifts in the will go to beneficiaries. Where an estate is insolvent, the priority list places reasonable funeral and testamentary expenses first after secured creditors, then costs of administration including executor fees, then debts with legislative priority, and then other unsecured debts. An executor who hands out gifts before debts are dealt with is working against that order.

Signs that something may be wrong

Delay alone is not misuse. Estates take time, and the Court of King's Bench says the average estate takes about a year. Still, some patterns deserve a closer look:

• The executor will not say what the estate holds or where the money is.
• Estate money appears to be mixed with the executor's own accounts instead of sitting in an estate account.
• Assets are sold or transferred without telling the beneficiaries.
• Gifts are paid out although debts or taxes may still be owing.
• Requests for information go unanswered for a long time.

Selling estate land generally requires written consent from all beneficiaries. The exception is where debts exceed available funds and the property may have to be sold to pay them. If land was sold without your consent, that is worth raising with a lawyer.

Getting answers and asking the court for help

The first practical step is usually a written request for information. An executor must account to beneficiaries within two years, or pass the accounts at the court house if they are disputed. Passing accounts means the executor's handling of the money is laid out and reviewed by the court.

The estate pays the executor's disbursements and out-of-pocket expenses, but the court can review them. In an insolvent estate, the province recommends consulting a lawyer and, if needed, applying to the court for directions.

If your concern is about the will itself, Saskatchewan courts allow a will to be proven in solemn form and a caveat to be filed. Where a will was duly executed, capacity is presumed, but suspicious circumstances shift the burden to the person propounding the will, while undue influence and fraud remain the burden of those attacking the will.

Whether other steps are available to you, and how a court might treat them, depends on your situation, so it is worth confirming with a lawyer. A lawyer can tell you which are realistic and how quickly you may need to act.

Why tax matters to the executor and to you

If a legal representative distributes assets before getting a CRA clearance certificate and tax is still owing, they can be held personally liable up to the value of the assets distributed. The certificate is requested only after returns are filed, notices of assessment are received and tax is paid, and assessment can take up to 120 days.

This is one reason an early payout can be a warning sign. Final distribution cannot occur until the CRA clearance certificate is received.

What evidence to gather and what to do next

• A copy of the will and any grant of probate or administration you have received.
• Statements, receipts and messages showing what the executor has told you.
• Anything showing what the estate held at death, such as bank, investment and property records.
• Notes of dates, amounts and who said what.
• Any accounting the executor has given you.

Keep your requests polite, written and dated. Avoid confronting the executor in a way that could lead to assets being moved. Then speak with a lawyer, who can review the records, explain the options and advise on timing.

Frequently asked questions