Executor Not Distributing the Estate: What Beneficiaries Can Do

You are a beneficiary, the estate has been open for a long time, and the executor (the law calls them an estate trustee) is not paying anything out, not answering questions, or keeps saying it is not ready. That is frustrating, and it is hard to know whether the delay is ordinary or a problem.

This article explains the tools a beneficiary generally has, in the order people usually think about them. Every estate is different, so use it to understand the landscape and to prepare for a conversation with a lawyer.

Start by finding out why the estate is stuck

Many delays have ordinary causes: waiting on assets to be sold, tax filings, or a dispute with someone else. Before escalating, ask the estate trustee in writing for a status update, a list of assets and debts, and a rough timeline. A written request also creates a record if you later need a court to look at the delay.

One thing to know early: in Ontario there is no statutory requirement for an estate trustee to pass accounts, and no law requires accounts at fixed intervals. So you cannot simply point to a date on the calendar and say the accounts are overdue. What you can do is use the court process, described below.

Your main options as a beneficiary

These are not either-or. Beneficiaries often combine them, and a lawyer can tell you which sequence fits your facts.

Objecting to accounts, and why timing is less of a trap than people fear

The basic limitation period is two years from the day a claim was discovered. Beneficiaries sometimes worry that they have lost the right to question the estate trustee because too much time has passed. The Court of Appeal has held that a beneficiary's notice of objection to an estate trustee's accounts does not commence a proceeding, and that an objection to old accounts is not barred by the two-year limitation period.

The court gave a practical reason: a bar on objecting would give an estate trustee a perverse incentive to wait out the two years, and it would insulate the management of the estate from effective scrutiny.

That does not mean you can wait indefinitely. Other claims against an estate trustee may be treated differently, and a person is presumed to have known of a claim on the day the act or omission took place, unless the contrary is proved. If you think you have a separate claim, get advice about timing sooner rather than later.

What happens once a dispute is under way

• Mandatory mediation under Rule 75.1 applies to specified estate proceedings, including a contested passing of accounts and claims against an estate.
• Mediation directions normally form part of a Rule 75.06 motion for directions.
• In the Toronto Estates List, if a notice of objection is received and not withdrawn, parties who agree on terms can still obtain a consent order giving directions at a 9:30 a.m. scheduling appointment.
• If the matter affects a child's interest, or involves trustee removal or an application to pass accounts, the Office of the Children's Lawyer must be served.
• On a contested passing, the court can make an order for fair and reasonable compensation to the estate trustee.

Procedures can differ by region and the rules have been amended recently, so confirm the current filing route and forms for your court.

Removal, preserving assets and costs

In one case a beneficiary moved to remove the estate trustee, who later resigned under a court order. The Court of Appeal held the trustee personally responsible for costs because he acted unreasonably and in his own self-interest, and he was not entitled to indemnity from the estate. That is one example, not a prediction for your case.

If you fear assets will be distributed or dissipated while a dispute is unresolved, the court can preserve property under Rules 45.01 and 45.02. It considers whether the assets are the subject of the dispute, whether there is a serious issue to be tried, and the balance of convenience, and it may impose conditions. In another case a daughter's application for an interim preservation order failed at the threshold, and she was ordered to pay $8,758.19 in costs of the application and $15,000 in partial indemnity costs of the appeal.

Estate litigation is governed by the ordinary civil costs regime, and costs come out of the estate only where public policy considerations apply, such as giving effect to valid wills, ensuring estates are properly administered, or litigation caused by the testator. Courts may also make blended orders, where the loser pays part of the other side's costs and the estate bears the balance. Think about costs before you start.

What to do next

• Write to the estate trustee asking for a status update, an asset list and a timeline, and keep copies.
• Collect the will, any account statements you have received, and all correspondence.
• Note dates: when you learned of the death, what you were told, and when.
• Do not sign releases or consents until you understand them.
• Speak with an Ontario estate litigation lawyer about whether to seek accounts, object, or ask for directions, and what it may cost.

Frequently asked questions