How to Object to an Executor's Accounts in Nova Scotia

You are a beneficiary or other interested person, and the executor's accounts do not look right. Maybe expenses are unexplained, assets seem missing, or the commission the executor wants feels too high. In Nova Scotia, the passing of accounts is the point where you can formally raise those concerns.

The process runs on firm deadlines, and missing one can cost you your say. This article walks through when a passing happens, what the executor must file, how to object, and what the court can do. Because regulations and forms can be amended, confirm the current version with the Registrar of Probate before you rely on any date or form number here.

This article covers the law of Nova Scotia.

When does a passing of accounts happen?

A passing of accounts is a court review of how the personal representative (the executor or administrator) handled the estate. The personal representative must apply to pass accounts within 18 months of the grant, unless the court orders a longer period.

A passing is also required when the personal representative is seeking a discharge, or when the court orders one. Whether and how you can raise concerns about an estate before then depends on your situation, so it is worth confirming with a lawyer.

Not every estate goes through a full passing. Accounting can be dispensed with using Form 37 (the personal representative's affidavit that accounting is not required) and Form 38 (consent), along with a release in Form 36 from beneficiaries. Think carefully before you sign a consent or release, because it may end your ability to question the accounts.

What the executor must file and the timing

Passing accounts uses Form 39 (application with a hearing) or Form 40 (application without a hearing). The personal representative also files an affidavit in Form 43, not less than 10 days before the passing date. The hearing date is not less than 45 days from receipt of the application.

The executor must also keep accurate records of all property and debts of the estate. Those records are the basis for the accounts, so they are what you will want to compare against.

• Form 39: application for a passing with a hearing.
• Form 40: application for a passing without a hearing.
• Form 43: the personal representative's affidavit, filed not less than 10 days before the passing date.
• Hearing date: not less than 45 days from receipt of the application.

Filing a Notice of Objection (Form 42)

If you object to the accounts, you file a Notice of Objection in Form 42 and serve it at least 10 days before the passing date. If you do not file one, you are treated as consenting. This is the single most important step, so do not wait for the last minute.

Because the hearing is at least 45 days after the application is received, you generally have some time to prepare. Use it well. Ask for the accounts, review them line by line, and decide what your specific concerns are.

• Note the passing date as soon as you receive notice.
• Count back at least 10 days to find your latest filing and service date, and aim to file well before it.
• Review the accounts against the estate's records, such as bank statements and sale documents.
• List each item you question and why, in plain terms.
• Complete Form 42, file it, and serve it at least 10 days before the passing date.
• Keep proof of when and how you served it.

What the court can do about the accounts and commission

When accounts are challenged, the court has real powers. They include requiring amendments to the accounts, setting the commission, and appointing an accountant.

On commission, the Probate Act allows the personal representative, beyond actual and necessary expenses, a commission not exceeding five percent of the amount received, and the court sets it. That five percent is a ceiling, not an automatic entitlement. In setting it, the court may consider the size of the estate, the care and responsibility involved, the time spent, the skill shown and the success of the administration. The commission covers all of the personal representative's services in completing the administration.

If you disagree with the result: appeals

An appeal from a registrar's decision under s. 93 of the Probate Act must be started not later than 30 days after the registrar's decision or order. Contested matters generally go before a judge, and a contentious application starts with a Notice of Application (Form 45) and an affidavit (Form 46).

Thirty days is short. If you receive a decision you disagree with, speak to a lawyer promptly rather than waiting to see how things settle.

What to do next

Start with the dates. Confirm the passing date, work out your Form 42 deadline, and collect everything you have about the estate. Then confirm the current regulations and forms with the Registrar of Probate, since form numbers or time limits may change over time.

• Contact the Registrar of Probate for the district to confirm the passing date and current forms.
• Ask the executor for a copy of the accounts and supporting records.
• Do not sign a release or consent until you understand what you are giving up.
• Talk to a lawyer early if the amounts are large or the issues are complicated.

Frequently asked questions