What to Do If an Executor Is Not Distributing the Estate in New Brunswick

When an executor goes quiet or keeps saying the estate is not ready, beneficiaries are often unsure what they are allowed to do. The good news is that New Brunswick gives interested persons several tools, from a simple request for information to applications to the Probate Court.

This article explains the usual order of steps. It is general information, not advice on your case, and the right route depends on your facts.

This article covers the law of New Brunswick.

First, work out whether it is delay or a problem

Estates take time. The executor may be waiting on probate, creditor claims or tax paperwork, and may sensibly hold funds back until the Canada Revenue Agency issues a clearance certificate, since distributing without one can make the representative personally liable. The Probate Court Act also sets an order of payment from estate assets that starts with funeral expenses, then the Act tax and probate fees, solicitors' costs and other listed items, before anything reaches beneficiaries.

Warning signs are different: no probate application after a long time, refusal to share any information, assets being used by the executor, or unexplained sales. If you are unsure, ask first and keep records.

Step one: ask for information, then send a demand

Begin with a polite written request for a status update, a list of assets and a timeline. If that does not work, a lawyer can send a formal demand letter that sets a reasonable deadline for a response. A demand letter is not a court order, but it often prompts action and documents your efforts.

You can also check the Court's record. A search into proceedings at the Probate Court costs $10. Applications are made to the probate office for the judicial district where the deceased lived or where their property was located.

Step two: ask the Court for an inventory or accounts

• Inventory: an interested person may ask the Court for an order requiring an executor, administrator or trustee to deliver a sworn, detailed inventory of assets and values. Generally an executor need only provide an inventory unless an interested person or creditor requests an account.
• Passing of accounts: any interested person may apply for a citation ordering the executor to pass accounts. Accounts include a full inventory and statements of money received, disbursed and remaining, and notice goes to each interested person.
• Court review: when accounts are passed, the Court may make a full inquiry into the whole property of the deceased, and interested persons resident in the Province get at least seven days' notice.

If misconduct or neglect caused a loss, the Court may order the personal representative to pay damages. Court-approved accounts bind notified interested persons unless mistake or fraud is shown, so read the accounts carefully and raise concerns before approval.

Step three: compelling, replacing or removing the executor

Several routes exist, and which fits depends on the situation.

The Trustees Act applies to personal representatives only for compensation and accounts, and where a will creates a trust. The same goes for its report-to-beneficiaries rule, which does not apply to the ordinary discharge of an estate unless the will creates a trust. Because the routes overlap, a lawyer can tell you which application suits your facts.

Compensation and standard of care

A trustee is entitled to fair and reasonable compensation from trust property, the court may fix it and may order accounts passed. A trustee must show the care of a person of ordinary prudence. Personal representative commission ranks last in the order of payment from estate assets listed in the Act.

What to do next

• Write down what you have asked for and how the executor replied.
• Gather the will, if you have it, and any estate paperwork you hold.
• Check deadlines: a dependant's application is generally due within four months of death, though a judge may allow a later application for any part of the estate still undistributed, and a married spouse's marital property application is also due within four months, extendable if the spouse did not know of the death or was prevented by circumstances beyond their control.
• Note that claims against an estate or executor can have limitation periods; for a claim that survives against a deceased person, proceedings must be brought within two years of the later of death and discovery, with a five-year outer limit from death.
• Ask a lawyer whether a caveat suits your situation. A caveat is a notice lodged against a grant, and it may be lodged with the Registrar or a probate office clerk; no proceedings may be taken on the application without notice to the caveator. It stays in force six months after lodging unless it is withdrawn, vacated or a notice of intent to contest is filed, and the caveator must file a notice of intent to contest in Form 3D within ten days of receiving the warning.

Legal steps cost time and money, and a lawyer can help weigh them against the size of your share.

Frequently asked questions