- A beneficiary or other person with an interest in the estate can apply to the court to remove an executor who is unable or unwilling to perform duties in a way that hampers administration of the estate.
- A court may relieve a trustee wholly or partly of personal liability for a breach of trust if the trustee acted honestly and reasonably.
- The general limit is two years from when you discovered the claim, but special rules can apply to fraud and trust claims, so get advice early.
You are a beneficiary and something feels wrong. Money seems to be missing, nobody answers your questions, or the executor has taken far too long. You want to know whether the law lets you hold the executor to account.
An executor holds a position of trust. This article explains in plain terms what that means, the kinds of problems people raise, and the tools British Columbia law gives you. It is general information, not advice on your situation.
This article covers the law of British Columbia.
What a fiduciary duty means for an executor
A fiduciary is someone trusted to manage property for other people. An executor is in that position: they are handling an estate for the benefit of others, not for themselves. Among the executor's duties, the government guide to wills and estates lists preparing accounts showing assets, receipts, disbursements and distribution of the estate, and getting the court's approval of the accounts.
The exact scope of these duties and the remedies for breaching them are questions of case-by-case judgment, so a lawyer should confirm how they apply to your facts. The statutes described below give you practical ways to act.
Examples of problems beneficiaries raise
- Using estate money or property for personal purposes
- Selling estate property to themselves or friends at a low price
- Failing to look for all of the deceased person's assets
- Refusing to give information or accounts
- Delaying the administration without a good reason
- Taking pay that seems out of proportion to the work
Whether a particular act is a breach depends on the facts. Poor communication alone is frustrating but may not amount to a breach. Some delays are lawful, for example where a claim is pending against the estate.
Tools available to a beneficiary
| Tool | What it does |
|---|---|
| Accounts | Executors and trustees must generally obtain an order passing their first accounts within two years of the grant or appointment, and must pass accounts annually if a beneficiary serves notice requiring it. |
| Court explanation | A trustee who fails to pass accounts as required may be called before the court to explain why. |
| Removal | A person with an interest in the estate may apply to remove or pass over a person entitled to act as personal representative. |
| Suing for the estate | With leave of the court, a beneficiary can sue on the estate's behalf to recover property or rights owed to the deceased. |
The full exceptions to the two-year accounts rule should be checked with a lawyer.
Removal and personal liability
The court may remove or pass over someone it considers should not act. Listed grounds include 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. When the court removes a representative, it must generally appoint a substitute who consents to act, and the former representative's grant is revoked.
Removal as personal representative does not by itself remove the person as trustee of a trust under the will. That needs separate relief.
On personal liability, the court can relieve a trustee wholly or partly if the trustee acted honestly and reasonably. This means an honest, careful executor who made a mistake may be treated differently from one who acted carelessly or dishonestly.
Time limits and where you can sue
A court proceeding generally must not start more than 2 years after the day the claim was discovered. Discovery is the first day you knew or reasonably ought to have known of the loss, its cause, the defendant's act, and that a court proceeding is appropriate. There is also an ultimate period of 15 years from the act or omission. If the act was wilfully concealed, it is treated as happening on the discovery date.
Special rules apply to fraud and trust claims, including that the trustee bears the burden of proving the claim was discovered. Because these rules can change the deadline, confirm yours promptly.
An executor who lives outside the province can still face a BC proceeding. A real and substantial connection to BC is presumed in a proceeding about administering an estate where the deceased had land in BC, or was ordinarily resident in BC at death and had movable property. A BC court may still decline jurisdiction if another court is a more appropriate forum.
What to do next
- Write down what you believe went wrong and when you first learned of it
- Ask the executor in writing for an account of assets, receipts and payments
- Collect the will, the grant, bank records and any correspondence
- Note any pending claims against the estate that may explain delays
- Speak with a lawyer about deadlines before time runs out
Frequently asked questions
Can I force an executor to show me the accounts?
A representative must generally obtain an order passing the first accounts within two years of the grant or appointment. A beneficiary can serve notice requiring accounts to be passed annually. A trustee who fails to do so may be called before the court to explain why.
Can the court remove an executor?
Yes. A person with an interest in the estate may apply, and the court may remove or pass over someone it considers should not act. If it does, it generally appoints a substitute.
Is an executor personally responsible for losses?
Possibly, if a breach of trust is found. The court may relieve a trustee wholly or partly if the trustee acted honestly and reasonably. The outcome depends on the facts.
How long do I have to bring a claim?
Generally 2 years from the day you discovered the claim, with an ultimate limit of 15 years. Special rules for fraud and trust claims may apply, so get advice quickly.
Sources
- WESA s. 155(2) — bclaws.gov.bc.ca
- Trustee Act, RSBC 1996, c. 464, s. 99 — bclaws.gov.bc.ca
- gov.bc.ca, After a Death: Deal with wills and estates — www2.gov.bc.ca
- Limitation Act, SBC 2012, c. 13, ss. 6 and 8 — bclaws.gov.bc.ca
- Court Jurisdiction and Proceedings Transfer Act, s. 10(b) — bclaws.gov.bc.ca
Links go to official government, court and regulator pages. The law changes — confirm you are reading the current version.
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