Passing of Accounts in Ontario: Forcing an Executor to Account

Many beneficiaries wait months for basic answers: what the estate holds, what has been spent, and when money will be paid out. A passing of accounts is the court process that puts those figures under review.

This article explains who can ask for one, what happens in court, and what you can do if the executor will not volunteer the information.

What a passing of accounts is

A passing of accounts is a court-supervised review of what an estate trustee has received, spent and paid out. On a passing of accounts, the judge may inquire into any complaint or claim by any person interested in the accounts, and an objection can be filed in response to a trustee's application to pass accounts.

No Ontario law requires an estate trustee to pass accounts at fixed intervals. Trustees may choose not to pass accounts unless the court compels them, at the request of or on behalf of a person with an interest. That is why a silent executor is not necessarily breaking a rule.

Who can force the issue

Under the Estates Act, a court will not require an executor or administrator to account for the deceased's property unless a person interested in the estate or a creditor asks for it. A beneficiary can therefore apply to compel accounts.

Before going to court, it is usually worth sending a clear written request for an informal summary of assets, debts, expenses and payments. If that fails, the request and the executor's response become useful evidence. The detailed court rules and forms for an order to pass accounts should be confirmed with a lawyer, since they change and depend on the type of application.

What happens at the hearing

• The judge may inquire into any complaint or claim by any person interested in the accounts.
• The judge may order the executor, administrator or trustee to pay damages or other sums to the estate.
• An estate trustee's compensation is a fair and reasonable allowance for care, effort and time, as allowed by a judge of the Superior Court of Justice. How compensation is dealt with on a passing of accounts depends on your situation, so it is worth confirming with a lawyer.
• If a trustee acted honestly and reasonably and ought fairly to be excused, the court may relieve them wholly or partly from liability for a breach of trust, though not for a loss from investing trust property.

If the executor brings the application to pass accounts, you can respond by filing a notice of objection to accounts. Doing so does not start a proceeding, so the two-year general limitation period does not apply to the objection. Do not treat that as a reason to wait, though, because other claims can still be time-limited.

Procedure, mediation and deadlines

In the Toronto Region, the Estates List of the Superior Court of Justice hears estate, trust and capacity matters. An applicant on a passing of accounts gets a hearing date by submitting a Request Form through the Ontario Courts Public Portal. Procedures differ by region, so check with a lawyer or the court where your matter will be heard.

Certain estates proceedings, including contested passings of accounts, are referred to mandatory mediation under Rule 75.1 unless the court grants an exemption. The Ontario government says the Mandatory Mediation Program operates in Toronto, Ottawa and Windsor. Whether mediation applies to your matter depends on where it is heard, so it is worth confirming with a lawyer.

Where Rule 75.1 mediation applies, the person who started the proceeding must move for directions within 30 days after the last day for submitting a Notice of Appearance (Form 75.4). The parties must choose a mediator within 30 days of the order giving directions, the mediator must give at least 20 days' notice of the session, and each party must provide a Statement of Issues (Form 75.1C) at least seven days before mediation. The directions order sets the cost of mediation and how it is shared.

What to do next

• Write to the executor asking for an informal summary of assets, debts and payments, with a reply date.
• Keep every reply, and a record of silence.
• File Form 74P if you want notice when someone starts a proceeding involving the estate.
• Gather the will, any bank or property documents you hold, and your own notes on what you were told.
• Speak with an estates lawyer about whether to apply to compel accounts and how to approach mediation.

Frequently asked questions