How to Remove an Executor Who Is Not Distributing the Estate in Nova Scotia

Waiting for an estate to be settled is hard, especially when the executor stops answering your calls or emails. Before you decide the executor is failing in the job, it helps to know what a normal timeline looks like and what the executor must do along the way.

This article explains the duties an executor (called a personal representative in the regulations) carries, how you can push for information and an accounting, and how the Probate Court of Nova Scotia fits in. Whether a court will replace an executor depends on the facts, so a lawyer should confirm your options.

This article covers the law of Nova Scotia.

Is the delay actually a problem?

Estates rarely close quickly. Advertising in the Royal Gazette is a statutory requirement for every estate opened in Nova Scotia, and the advertisement runs six months, after which the estate can move to distribution.

There is also a reason for an executor to hold back. If the executor distributes early, they risk personal liability for unpaid claims. After 12 months from the grant (or longer if the court allows), claims presented must be paid and distribution made.

So a quiet few months may be proper caution. Silence well past those points, with no information at all, is a different matter.

What an executor must do after the grant

The regulations set out several steps with time limits. They give you a way to see whether the executor is keeping up.

The registrar may extend the notice times. If you never received a notice of the grant and you may be entitled to share in the estate, that is worth raising with the executor in writing.

Asking for an accounting and objecting to it

Start with a polite written request for an update, the inventory and a summary of debts paid and assets held. Keep copies of everything you send and receive.

The formal route is passing of accounts. The personal representative applies using Form 39 (with a hearing) or Form 40 (without a hearing), and files an affidavit (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.

If you object to the accounts, you file a Notice of Objection (Form 42) and serve it at least 10 days before the passing date. Without one you are treated as consenting. The court's powers include requiring amendments, setting commission and appointing an accountant.

• Accounting may be dispensed with using Form 37 (the personal representative's affidavit) and Form 38 (consent), and a release (Form 36) from beneficiaries.
• Do not sign a consent or release until you understand what you are giving up.
• Commission under the Probate Act covers all of the personal representative's services in completing administration, and the court may consider the estate's size, care and responsibility, time spent, skill and the success of the administration.

Going to the Probate Court

Probate applications are handled by a Registrar of Probate for the district, and estate records are kept at the Registrar's office in each district. Contested matters go to a judge. A contentious application starts with a Notice of Application (Form 45) and an affidavit (Form 46).

A separate tool, a citation, lets someone force a named executor to accept or refuse the office. It cannot be used until at least 20 days after the testator's death unless the court finds circumstances warrant earlier.

Separately, an executor who wants to give up the office renounces by completing Form 12 or another method satisfactory to the registrar, and the regulations set no deadline for renouncing. An executor who has already acted in the estate may be treated differently, so it is worth confirming with the registrar before taking any step.

Whether the court will compel an executor to act, or replace one, depends on the facts: what the executor has and has not done, the will, and the evidence you can put before the judge. How this applies depends on your situation, so it is worth confirming with a lawyer.

If you disagree with a registrar's decision, an appeal under s. 93 of the Probate Act must be started not later than 30 days after the decision or order.

What to do next

• Write down key dates: the date of death, the date of the grant and when you received any notice.
• Ask the executor in writing for an update, the inventory and the progress of distribution.
• Check the Registrar's office for the estate record in the district.
• Watch for passing-of-accounts papers, and file a Notice of Objection on time if you object.
• Note that a Testators' Family Maintenance Act application cannot be brought after six months from the grant, subject to an extension.
• Note that a surviving spouse's application to divide matrimonial assets must be made within six months after the grant, though the court may extend that where the survivor did not know of the grant or lacked adequate opportunity, and a late application reaches only undistributed assets.
• Speak with a lawyer early if the executor will not respond.

Frequently asked questions