When Will I Get My Inheritance? Executors and Delays in New Brunswick

You have been named in a will, or you are an heir, and months have gone by without a payment. It is frustrating, especially when you have been told the estate is simple. Often, though, the delay has legal reasons behind it.

This article explains why an executor in New Brunswick is often cautious about paying beneficiaries, and what you can do if the wait seems too long. Every estate is different, so a lawyer can confirm how this applies to yours.

This article covers the law of New Brunswick.

Why distribution usually comes near the end

The executor is the person who holds legal authority over the estate. On death, the deceased's real and personal property vests in the personal representative, whether executor or administrator, regardless of what the will says. That is why the executor, and not you, deals with banks, land and creditors first.

Paying out too early can leave the executor answerable for claims and taxes that were not dealt with, which is why distribution tends to come last. The sections below set out the main reasons for waiting, starting with the four-month window.

The four-month window for claims against the estate

Two kinds of claim can reduce what beneficiaries receive, and both have a four-month time limit that runs from the date of death, not from probate.

• A dependant, such as a spouse or child whose resources are insufficient, may ask a Court of King's Bench judge for maintenance and support out of the estate, even against the will. The application cannot generally be made later than four months after the death, though a judge may allow a later application for any part of the estate still undistributed if just.
• A surviving married spouse may apply to have marital property divided in equal shares as against the estate. That must be done within four months of death, extendable if the spouse did not know of the death or was prevented by circumstances beyond their control. It is available to married spouses only.

Because a judge may suspend administration of the estate once a dependant applies, many executors wait until the four months have passed before paying out. That way they avoid having to recover money already handed over.

Creditors, the order of payment and tax

Debts come before gifts. The Probate Court Act sets the order in which estate assets are used: funeral expenses; probate tax and fees; solicitors' costs; wage claims under the Wage-Earners Protection Act; personal representative liabilities; and then the personal representative's commission.

If the executor disputes a claim, the executor can give written notice. The claimant then has 30 days to apply to the Court, or three months if the Court allows, otherwise the claim is forever barred.

Tax is the other major reason. The final T1 return for a death from January 1 to October 31 is due April 30 of the following year, and for a death from November 1 to December 31, six months after the date of death. If the deceased or a spouse or common-law partner was operating a business, the filing date is June 15 of the following year for a death from January 1 to December 15, though any balance owing is still due on the regular date. The estate's T3 return is due 90 days after the trust's tax year-end.

The executor can then apply for a clearance certificate on Form TX19, but only after returns are filed, assessments received and amounts paid or secured. CRA acknowledges the request within 45 days, and the assessment can take up to 120 days. A representative who distributes without a clearance certificate can be held personally liable for tax owing. That personal risk is a big reason a careful executor holds back some or all of the money.

What you can do about a long delay

A reasonable delay is not necessarily misconduct, but you have options if nothing seems to be happening. The Probate Court can be asked for several things.

An executor need only provide an inventory unless an interested person or creditor requests an account. On passing accounts, the Court may make a full inquiry into the whole property of the deceased, and where misconduct or neglect caused loss it may order the personal representative to pay damages. These steps can be costly and slow things further, so many people begin with a polite written request for an update.

What to do next

• Ask the executor, in writing, where the estate stands and what is still outstanding.
• Note the date of death and check whether four months have passed for dependants' and marital property claims.
• Ask whether the final T1 and T3 returns are filed and whether a clearance certificate has been requested.
• Ask whether any creditor claims are being contested.
• Request an inventory, and an account if you think it is needed.
• Speak with a lawyer before applying to the Probate Court, and keep in mind that other time limits may apply, such as the limitation periods in the Limitation of Actions Act.

Frequently asked questions