Normally the executor is not required to meet with beneficiaries or even to take their telephone calls. Have all Complaints go to the Executor 200-15 Fitzgerald Road They might start talking amongst … Ottawa, ON K1G 3, e: info@ontario-probate.ca An accounting is usually the proper time and forum to address: An estate trustee may use estate funds to defend the estate and the will of the testator (for instance, if the validity of the will is challenged). 42. The process does not always go smoothly, however, and in some cases the executor may refuse or withhold a distribution. If the amount owed is large enough, it is possible that the decedent’s next of kin will get nothing at all. 555 Legget Drive Executor What is Your Responsibility to the Beneficiaries. Your Executor’s Duties They have to keep you informed. The beneficiaries will need to present clear evidence of misconduct that cannot be addressed by a passing of accounts or the appointment of an estate trustee during litigation (see below). 15th Floor, 4 Robert Speck Parkway Typically, the executor has more responsibilities than rights. Justice Brown found that the application was deficient because the executor had not brought her own application. However, if there is evidence that an estate trustee is not performing properly, or, a dispute with beneficiaries makes it difficult or impossible for the trustee to perform, it is possible to have a third party appointed as ‘estate trustee during litigation’ (the “ETDL”). “They’re risking personal liability and can be held legally accountable,” Lo says. In the majority of cases, executors suddenly become much more active when they are confronted with a reasonable Court proceedings by the beneficiaries to enforce their rights. The executor has several duties including: disposing of the body; obtaining Probate of the will if there is one; collecting in and securing the assets of the estate; In order to become an executor, you must have been named as such in the deceased person’s will and you may not be alone. If the executor fails to meet his fiduciary duties, including properly distributing the assets of the estate as well as paying the debts and taxes of the estate or the executor acts negligently, the beneficiaries can sue the executor. To serve you, we have offices across the Greater Toronto Area – Toronto, Scarborough, Markham and Mississauga. Where the executor is not communicating with the beneficiaries, an estate lawyer starts by reviewing the last will and testament of the decedent. For instance, if the executor is living in the house of the deceased, the executor has an incentive not to sell it and distribute the proceeds? Lack of communication usually leads to suspicion and resentment. Provide regular updates to beneficiaries regarding the status of administration to avoid any Individual state laws dictate whether estates go through probate when people pass away. The executor must provide proper accounting, in Court format, to beneficiaries in a timely manner. It appears that he is trying to de-value the estate by not liquidating assets of the estate in a timely manner. The executor's relationship with the beneficiaries of the estate is fiduciary, in other words the executor must act in the best interests of the beneficiaries. A trustee is obliged to provide in a passing of accounts vouchers relevant to items reasonably in dispute. The court will not become involved in dividing the fee among co-executors. f: 1 (866) 397-9227, Probate in Ontario A final accounting could not be prepared in March 2010. Executor’s Checklist Strictly speaking beneficiaries do not really have ‘rights’. Executors who cannot or will not administer the estate are not uncommon. When you’re serving as executor, the single best way to avoid problems with beneficiaries is to keep them informed about the process and make your actions as transparent as possible. One frequent issue relates to people’s expectations around how long it takes to receive an inheritance. Sometimes years can go by without the executor having sought an appointment (probate), or having collected the assets (for instance, sold properties), or having filed tax returns or distributed the estate to the beneficiaries. Yes. Executor’s Fees (compensation) Basically I have not heard anything from the executor since my uncle passed away. My 3 siblings and I, including the executor of will, are beneficiaries in the estate. Ottawa, ON CANADA K2H 9G1, Kanata office: Maintain or initiate legal actions on … The test for appointment of an ETDL is much easier to satisfy that either the test to ‘pass over’ an executor prior to appointment or removal of an estate trustee after appointment. Beneficiaries do NOT have a right to do anything of the things that the executor is obliged to do. The executor’s role is often referred to as a trustee or fiduciary role. This means that the law prevents you from acting in your own interest to the detriment of the estate. An executor who wishes such a claim should renounce and not be appointed; and if appointed, should resign or be replaced (at least by an estate trustee during litigation). Often, executors have failed to do something, such as: No amount of letter-writing, screaming, or complaining will force the executor to act. Unlike executors, beneficiaries do not play a role in the distribution of an estate (unless they have also been named as an executor). 10 Things to Know if You’re Not the Executor of an Estate. However, this does not eliminate the executor’s duty to comply with the probate process. Probate /Estate Taxes in Ontario “Executors are obviously going to be more in the know about estate matters,” she says. Only after these costs are deducted from the estate do beneficiaries and heirs receive what is left. The beneficiaries are entitled to a passing of accounts, and the courts rarely are terribly accommodating of executors who fail to honour this obligation. In some states, the executor files the final accounting that includes all of this information with the court before finalizing probate. Grief and family dynamics– Many people feel overwhelmed by the thought of being responsible for estate settlement at a time of grief. Sometimes the executor can be removed. Remember executors are compensated for their time and services. Executor’s Duties By Mary Randolph , J.D. A good executor will avoid this costly step. Executor Not Paying Beneficiaries & Misconduct E xecutor misconduct is serious. The executor must act in the best interests of the estate and all of the beneficiaries and cannot act in his or her own interests if they are not the same as those of the estate and the beneficiaries. In fact, beneficiaries might not receive anything until several months after they’ve been notified … 41. Suite 800, 1730 St. Laurent Blvd. Don't forget to subscribe to our newsletter to get your weekly fix. t: 1 (888) 995-0075 If an executor does not willingly produce, for example, invoices, receipts, and cancelled cheques, the beneficiary may consider compelling that the executor complete a court-supervised review of the accounts. Indeed, it cannot be prepared today. What beneficiaries have is the ability to force the estate trustee to perform their duties. We are experienced at forcing executors to do the right thing. Executor Not Communicating with Beneficiaries When an executor is not communicating with beneficiaries, the beneficiaries may lose their patience and bring a proceeding to compel the executor to file a judicial accounting. Acting as the executor of an estate can be a difficult job. Communication is your best tool to combat this potential fear. A beneficiary has the right to notification of probate court actions, to see the original will and to ask the executor for information and documentation relating to the estate assets such as value appraisals, asset sales contacts and a property inventory. Beneficiaries may attempt to prevent the appointment of an unsuitable estate trustee by ‘objecting’. Ultimately, the only way to force an executor to perform properly is to go to Court. This can be extremely frustrating for beneficiaries, especially family members. I live in Australia. Send a copy of the Will to each beneficiary entitled to receive a copy. To serve you, we have offices across Ottawa. The law in Ontario, at least, is thus: Unless an executor needs to apply for a "Certificate of Appointment of Estate Trustee" (which isn't necessary in the ordinary course), he's under no obligation to communicate with the beneficiaries until actually distributing the assets. Assets with designated beneficiaries . However, to deal with the Ontario assets, the executor herself did not apply for the necessary authority in Ontario; instead, one of the beneficiaries of the estate applied with the consent of all of the other beneficiaries. Executor’s Duties These trust duties are owed to the beneficiaries of the estate. the expenses incurred by the trustee (such as legal fees), the values received by the estate trustee for assets (such as real estate). Up to four executors may be named to manage an estate. But, they should not allow their personal interests to conflict with what’s best for the beneficiaries. Importantly, however, an ETDL does not have power to distribute the estate. We can arrange to meet you at this address, or at an address across the GTA that suits you better. Executor Duties The executor begins his role by communicating his position to the beneficiaries, financial institutions and known creditors. 1. So as executor what is your responsibility to the beneficiaries and on that topic we are talking about how to keep the beneficiaries informed when in probate.. select or hire professional advisors for the estate. The executor is required to do this before distributing what remains to the decedent’s beneficiaries.If the decedent had a lot of outstanding debts, the beneficiaries will get a smaller gift from the estate. Section 50 Application: You can apply to the court for the executors to be removed or replaced under section 50 of the Administration of Justice Act 1985. It's not enough that the beneficiaries simply don't like the executor. Communicate with all the Beneficiaries In the article Communicating with the Beneficiaries is Essential for the Executor, the beneficiaries received updates from me on a regular basis. If the proposed trustee is the executor named in the will of the deceased, there is a presumption that the testator’s choice should prevail. Removal of an estate trustee after appointment is difficult. The appointment of themselves as an Executor/Administrator; Their inheritance – be it a specific item, cash sum or share of the estate. Nevertheless, most executors will answer "normal" phone calls or respond to "normal" emails. Evidence that the proposed trustee has breached trust obligations in the past (fraud, etc.) 5. Suite 304, Tower A Beneficiaries do NOT have a right to do anything of the things that the executor is obliged to do. This is the law even if their fees are not mentioned in the will. Normally the executor is not required to meet with beneficiaries or even to take their telephone calls. Conclusion. However, an executor will only be removed if there is a good reason. Holding executors accountable. To serve you, we have offices across Ottawa. Note, however, that as a general rule the executor is not obliged to provide a) ‘minute by minute’ on-going reporting to beneficiaries, or b) all back up documentation (as in photocopies of expenses etc.- referred to as ‘vouchers’). The executor of a will has a fiduciary duty to act in the best interest of the estate. Some beneficiaries may have competing legal obligations which preclude them from signing executor releases Although beneficiaries have the right to information on the estate, they don’t have the right to know what the other beneficiaries are to receive from the estate. Suite 800, 1730 St. Laurent Blvd. For instance, beneficiaries do not have the right to: Ontario estate law is premised upon the concept that trustworthy people are appointed as estate trustees, that they perform their duties without interference, and then provide an accounting to the beneficiaries. But this also includes personal remuneration to the executor himself, a calculation left largely to personal discretion. Sometimes (but not always) a clear conflict of interest will render a proposed trustee unsuitable. Are you experiencing a very slow executor, one who never actually administers the estate? Ottawa, ON CANADA K2H 9G1, Kanata office: All information has been passed onto me by my father who was close with my uncle and his relatives. Because the executor has a fiduciary duty to act in the best interests of the executors, it is critical that the executor does not act in such a way that is in conflict with those interests. It is unreasonable to expect accounting during the first months of the estate, and the executor is not obliged to consult with beneficiaries about every decision, nor provide them with back up documentation on an on-going basis. Beneficiaries who are unhappy with the executor have the right to request that the court remove the executor and appoint a new one. Regular discussions with the executor will allow you to be involved in the process. They must act, or they should resign. It's not enough that the beneficiaries simply don't like the executor. There are 3 heirs; 1 is the executor, who does not communicate with the rest. Beneficiaries can challenge an uncooperative executor – in and out of court 06 th July 2018 The death of a loved one is often distressing and matters are rarely improved if those tasked with administering the deceased’s estate do not perform the duties they are required, by law, to undertake. Get Estate Legal Advice. However, for an experienced lawyer, it is relatively straightforward to commence proceedings on behalf of beneficiaries to force the executor to act and fulfill their duties. These proceedings do not have to be slow, expensive or complex (although much depends on how the executor responds). So if an executor is not administering an estate, ‘get moving’ and start the process of applying for a Court order compelling the executor to act. or distributing them to the beneficiaries. We believe that the best bet is to just start moving the executor firmly and purposefully towards a court date. There are many possible reasons for not administering an estate properly, but very few of them actually excuse the executor. Kanata, ON K2K 2X3, St. Laurent office: Executors Rights. When the testator dies, the appointed executor is tasked with distributing assets from the estate to the beneficiaries according to the terms of the will. An estate trustee cannot make a contested claim against the estate (such as a dependent support claim, or contested debt), nor can the estate trustee ‘challenge the will’. An estate trustee should not use estate funds to defend the trustee’s personal interests (for instance, the trustee’s share as a beneficiary). Communication with beneficiaries 40. Our mailing address and address for service is: Miltons Estates Law The same responsibility to act honestly and in good faith and to account is also present any time a person is a power of attorney, a guardian for a minor or a disabled person, or a trustee in any capacity. When an executor is not communicating with beneficiaries, the beneficiaries may lose their patience and bring a proceeding to compel the executor to file a judicial accounting. While your executor role and responsibilities are somewhat dictated by the court, it is good for you to begin communicating your step-by-step action plan – and related timing – with the beneficiaries as soon as practicable. Removing an executor / estate trustee Region: Ontario Answer # 1175 ... and make decisions that are in the best interest of the beneficiaries or trust. t: 1 (888) 995-0075 There is a family home involved. Note: hostility of beneficiaries to the trustee is not the same, and is not a basis to pass over an executor. Please contact us to arrange a meeting. Whether you are currently settling an estate or planning to appoint an executor* in the future, the following checklist can help ... * Estate trustee with a Will in Ontario; liquidator in Quebec It was not yet time for the executrix to be discharged. If a person appoints a non-resident of Canada as his or her executor, the estate will not receive preferred tax treatment on Canadian dividends or capital gains, and it may not be able to divide the tax burden with beneficiaries who are Canadian residents. Method of Communicating with the Beneficiaries. The Will states the deceased estate is to be shared equally between all 4 beneficiaries. Fortunately, there is a process for the reluctant appointed personal representative—the term used for executor, administrator, or trustee in Alberta—to renounce the appointment. In my administration, most beneficiaries lived out-of-state, and the beneficiary pool was large. The executor could find his personal assets vulnerable in these situations. The fundamental issue is whether their is evidence that the proposed estate trustee is unlikely to perform their duties properly. If the executor is truly incapable of acting, then the executor should resign and be replaced. Divorce or separation before death? The Rules of Civil Procedure set out a process for dealing with objections. Accordingly, this is the kind of information that the executor should provide to the beneficiaries: When an executor is not communicating with beneficiaries, they might feel upset and sue the executor. The method used in communicating with the beneficiaries is up to the executor. When appointing a beneficiary as executor There is no specific legal requirement for an Executor to disclose a Will or its terms, but if you are a beneficiary, you can ask for … Ottawa, ON K1G 3, e: info@ontario-probate.ca © Copyright - Miltons IP - All Rights Reserved 2020, Home ownership: joint tenants and tenants in common, Beneficiary designations: TFSA, RRSP, RRIF, pension, insurance, Dependent support obligations and challenges, Wills and marriage, divorce & re-marriage, Retention, revocation and destruction of wills, Disputes about actions of an attorney for property, Estate administration / executor services. failed to sell real estate (the house of the deceased); failed to distribute the estate to the beneficiaries; and. f: 1 (866) 397-9227, Probate in Ontario Our mailing address and address for service is: Miltons Estates Law Tell them that the will named you as executor (or if there’s no will, that you’re willing to take on the job and have priority under state law) and that you’ll be gathering property, paying bills and taxes, and eventually distributing property to the people who inherit it. get private information from third parties; receive ‘minute by minute’ information about the estate; or. responsible for distributing the estate of the person who has died in accordance with the terms of the deceased’s So too would be evidence that the executor has failed to probate or commence administration of the estate in a reasonable period of time (over a year). W hen an executor refuses to act, beneficiaries of the will may become upset because the executor is the only person who can ensure the estate gets distributed. They are enforced by the Courts. Our address for deliveries in  Mississauga is: Miltons Estates Law Usually, this begins with a straightforward application for an Order for a Passing of Accounts. When an Executor Refuses or is Unable to Act. Mississauga, ON L4Z 1S1. The beneficiaries also might experience the same effect. Communicate Timeline Expectations. For instance, if the executor also resides in the house of the deceased and is refusing to pay rent or sell the house, this conflict of interest is a possible grounds for passing over. Of greatest significance in most passing over applications is evidence that hostility of the trustee towards one or more beneficiaries will lead to the trustee failing to perform their duties. One of the most important jobs for an executor is to keep beneficiaries in the loop as you work to settle the estate. 200-15 Fitzgerald Road An executor can delay payments to beneficiaries to pay taxes and debts on the estate. The executor is not entitled to receive any compensation unless this accounting is both provided to and approved by the beneficiaries. Upon examination, they will let you know exactly what your rights are depending on your status (a wife of a … As an extension of this duty, executors also have several responsibilities to the beneficiaries of the will. The executor's two primary rights are the right to decline the role and the right to … However, this presumption can be overcome and the executor ‘passed over’. You may consider a legal action that is called a Compelling or Challenging a … Communicating with beneficiaries As executor, once you understand the terms of the Will and have identified any potentially contentious issues, it is important for you to communicate with the beneficiaries: • Provide a copy of the Will to all residual beneficiaries. This accounting is both provided to and approved by the estate do beneficiaries and heirs receive what is.... Laws govern estate administration, state intestacy laws govern estate administration ETDL assumes responsibility for administration of the simply! ; 1 is the law or unfairly favour themselves or any other.... Have power to distribute the estate ’ s responsibilities, starting with filing the will not required meet. Common law beneficiaries ’ lawyer 15 months ago and virtually nothing has happened except expenses! Family members some states, the court before finalizing probate should not allow their personal interests conflict! 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Rights ’ role in claims under the inheritance ( Provision for family and Dependants ) Act 1975 no. With the latest news monthly basis GTA that suits you better and family dynamics– many people feel by... Creditors of the estate trustee by ‘ objecting ’ that includes all of them actually excuse executor! People ’ s responsibilities, starting with filing the will is hired by the of... ( but not always go smoothly, however, an executor, who not..., I suggest you invest an hour of your time in meeting with an executor to perform duties! A trustee or fiduciary role, please contact us for an Order a. I suggest you invest an hour of your time in meeting with an attorney familiar probate... Respond to `` normal '' emails of being responsible for managing the?! Estate are paid not eliminate the executor of will has a fiduciary duty to Act process! Let everyone know right to Act on the decedent detriment of the estate just moving! Mentioned in the process ) trustee or executor obliged to do anything of things! Their is evidence that the best means of anticipating and ultimately defusing disputes involving beneficiaries and heirs can a!