How to Force an Executor to Pass Accounts in British Columbia

Being told that you cannot see the estate's financial records is one of the most common complaints beneficiaries have. Passing accounts is the formal process by which an executor shows the court what came in, what went out and what remains.

This article explains the rules in British Columbia, the steps you can take, and what happens if the executor ignores you. A lawyer can confirm how these rules apply to your estate.

This article covers the law of British Columbia.

What passing accounts means

The government guide lists as executor duties preparing accounts showing assets, receipts, disbursements and distribution of the estate, and getting the court's approval of the accounts. Passing accounts is that approval step. It gives beneficiaries a documented, court-reviewed picture of what has happened.

In plain words, the accounts are the executor's report card for the estate. They let you see where the money came from, where it went and what is left, rather than relying on the executor's word alone. How this applies to your estate depends on your situation, so it is worth confirming with a lawyer.

When accounts must be passed

Under the Trustee Act, executors, administrators and trustees under a will must obtain an order for passing their first accounts within two years of the grant or appointment, unless the exceptions in the section apply. Because exceptions exist, check with a lawyer whether one applies to your estate.

You do not have to wait for that deadline. If a beneficiary serves notice requiring it, the representative must pass accounts annually, within one month of the anniversary.

Steps to take

• Make a written request for information and records, with a reasonable reply date.
• If you are not satisfied, serve notice requiring accounts to be passed.
• Keep proof of how and when you delivered the notice.
• If the executor still does not act, ask a lawyer about having the executor called before the court.
• Keep copies of everything you have received so far.

A trustee who fails to pass accounts as required may be called before the court to explain why.

Questioning pay and conduct

Accounts often raise questions about compensation. An executor or trustee may be allowed a fair and reasonable allowance not exceeding 5% of the gross aggregate value of the estate, and an annual care and management fee may also be allowed, capped as a percentage of average asset value. The court may, on application, settle the amount of compensation, even if the estate is not otherwise before the court.

This does not apply where the allowance is set by the instrument creating the trust, such as the will. Read the will first.

If a trustee may be personally liable for a breach of trust but acted honestly and reasonably, the court may relieve the trustee wholly or partly of that liability. A personal representative is also liable, to the extent of the estate's assets, for the deceased person's wrongful acts or breaches.

If you suspect assets have been left out, note that an applicant for a grant must make a diligent search and inquiry to find the property and liabilities of the deceased.

Deadlines and what to do next

A court proceeding generally must not be started more than 2 years after the day the claim is discovered, which is when you knew or reasonably ought to have known of the loss, its cause, the defendant's act and that a proceeding is appropriate. There is also an ultimate limitation period of 15 years from the act or omission. Fraud and trust claims have special rules: the trustee bears the burden of proving that such a claim was discovered, and where an act or omission was wilfully concealed it is deemed to have taken place on the discovery date. A lawyer can confirm the deadline that applies to you.

If the executor will not act on estate claims, a beneficiary may, with leave of the court, sue on the estate's behalf. If the problems are serious, removal may also be an option.

The court may, subject to the will, remove or pass over a person it considers should not act. The listed grounds include refusing to act without renouncing, incapacity, a conviction for dishonesty, an undischarged bankruptcy, and being unable or unwilling to perform duties in a way that hampers administration of the estate. Removal as personal representative does not by itself remove that person as trustee of any trust under the will, which needs separate relief. When the court removes a personal representative, it must appoint a substitute who consents to act, unless administration is complete or a new appointment is unnecessary.

If the executor lives outside British Columbia, that does not necessarily put them out of reach. A real and substantial connection to British Columbia is presumed in a proceeding about administering a deceased person's estate where the deceased had immovable property here, or movable property anywhere if ordinarily resident here at death. A British Columbia court may still decline jurisdiction if a court of another state, which includes other provinces and foreign countries, is a more appropriate forum.

Gather the will, the grant, and every message about records, then get advice before filing anything.

Frequently asked questions