How to Object to an Executor's Accounts or Fees in Ontario

You may have been served with papers saying the estate trustee (the executor) is asking the court to approve the estate accounts. If you think money was spent badly, something is missing, or the fee the trustee wants is too high, you have a right to say so, but the deadlines are firm.

This article explains what the accounts must show, the timeline for objecting, how the court looks at compensation, and what happens if the trustee has not started the process at all. It is general information, not advice on your situation.

What the accounts must contain

Estate trustees must keep accurate records of the estate's assets and transactions. Accounts filed with the court must include the assets at the date of death, all money received, all liabilities, and a statement of the compensation the estate trustee claims.

When the trustee applies to pass accounts, they file the estate accounts verified by affidavit (Form 74.43), a copy of the certificate of appointment, and any earlier judgment on passing of accounts. Read these closely. Compare the opening assets with what you understand the person owned, and look for gaps, unexplained payments or a fee that seems large.

The timeline and the 35-day objection deadline

The notice of application to pass accounts and the draft judgment must be served on every person with a contingent or vested interest at least 60 days before the hearing date, or 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 (Form 74.45) at least 35 days before the hearing date. Older guides may cite a shorter objection period. That is out of date, so work from the current 35-day rule.

Do not assume silence is safe. If no objection is made and the required record is filed, the court may grant judgment without a hearing.

How the court looks at compensation

An estate trustee is entitled to a fair and reasonable allowance for their care, pains and trouble and time spent, as allowed by a judge of the Superior Court of Justice. When a judge passes the accounts, this is how a fee claim is assessed if a beneficiary objects. The statute sets no percentage or formula, so the question is what is fair and reasonable on the facts of your estate.

There are two exceptions to keep in mind:

• If the will (or other trust instrument) itself fixes the allowance, the Trustee Act rule on a fair and reasonable allowance does not apply.
• Where a lawyer is the trustee and has provided necessary professional services to the estate, the allowance may be increased.

A party who wants costs above Tariff C must serve a request for increased costs (Form 74.49.2 or 74.49.3) with a costs outline at least 15 days before the hearing, and any objection must be served at least 10 days before the hearing.

What the court can do if funds were misused

On a passing of accounts, the judge may make a full inquiry into the deceased's property and may order the executor, administrator or trustee to pay such sum by way of damages or otherwise as is just. This is a route to recover misused estate funds.

A trustee is not always held personally liable for a mistake. The court may wholly or partly relieve a trustee of personal liability for a breach of trust if they acted honestly and reasonably and ought fairly to be excused. Trustees must also use the care, skill, diligence and judgment of a prudent investor when investing estate property.

If the trustee has not started a passing, and next steps

You do not have to wait for the trustee. A court cannot require an executor to account other than by an inventory unless an interested person or creditor asks, and a beneficiary is an interested person who can compel accounts. A person with a financial interest may also move for an order requiring the estate trustee to pass accounts, and such motions may generally be made without notice.

• Find the hearing date on the notice and count back to your deadlines right away.
• Review the accounts against the four required items: assets at death, money received, liabilities and compensation claimed.
• Check whether the will fixes compensation.
• Write down each transaction or fee you question and why.
• Serve Form 74.45 on time if you object.
• Speak to an Ontario estates lawyer early, since missing a deadline may mean the accounts are approved without a hearing.

Frequently asked questions