Executor Not Responding or Delaying an Estate in Ontario

Waiting on an estate is hard, especially when the executor does not return calls or emails. Some delay is normal. Gathering assets, paying debts and filing tax returns take time. Silence for months with no explanation is different, and you have options.

This article walks through the steps most people take, from a polite written request to a court application. The right step depends on the facts, so a lawyer can help you choose one.

Check why nothing is happening

Before escalating, work out where the estate actually stands. The person named in a will does not have to act as estate trustee. They may simply not have decided, or may not want the job. Where real property or assets held by a financial institution are involved, the estate normally must be probated, so a stall may just mean no application has been made yet.

It also helps to know what the executor is dealing with. Funeral costs and debts are generally paid before the estate is distributed. Final tax returns must be filed and any balance owing paid before distribution. A clearance certificate can only be requested after returns are filed and assessed, and the CRA assessment can take up to 120 days. A genuine wait of several months can be legitimate.

Start with a written request

A short, calm letter or email creates a record. It also gives the executor a fair chance to respond.

• State who you are and your interest in the estate.
• Ask for a short update on what has been done and what remains.
• Ask for a list of the estate's assets and debts.
• Set a reasonable date for a reply.
• Keep copies of everything you send and receive.

Estate trustees must keep accurate records of the estate's assets and transactions. Asking to see them is a reasonable request. A short letter from a lawyer sometimes prompts a response when personal messages have not.

Court options when the executor stays silent

Any person who appears to have a financial interest in an estate has several tools under the Rules of Civil Procedure and related statutes. The table sets out the main ones.

Some of these motions may generally be made without notice, but a motion for further particulars requires 10 days' notice to the estate trustee. The court can also summon a named executor to prove or refuse to prove the will, and if they do not appear their right to the executorship wholly ceases.

Making an executor account

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

On an application to pass accounts, the estate trustee files the accounts verified by affidavit, a copy of the certificate of appointment and any earlier judgment on passing of accounts. The notice of application must be served on every person with a contingent or vested interest at least 60 days before the hearing (75 days if served outside Ontario).

If you object to the accounts, including the compensation claimed, you must serve a Notice of Objection to Accounts at least 35 days before the hearing. If no one objects and the required record is filed, the court may grant judgment without a hearing. On a passing of accounts, a judge may also inquire into the deceased's property and order an executor to pay money back where funds were misused.

What to do next

• Write down a timeline of what you know: date of death, contacts, replies and silences.
• Send a clear written request and keep proof of delivery.
• If you are a minor beneficiary's parent, note that the Office of the Children's Lawyer may act for children under 18 in estate matters.
• Speak to an Ontario estates lawyer before filing anything, since the right motion depends on whether probate has been granted and what the will says.
• Avoid accusations in writing until you know the facts. Delay alone is not proof of wrongdoing.

Frequently asked questions