This leaves the estate at a standstill, and beneficiaries waiting around. Usually this is followed by a breakdown in family harmony. While executors have a right to apply for probate, they have to remember that beneficiaries have rights too. The executor has a legal responsibility to administer and distribute the estate.
If an executor has a legitimate reason for the delay, he or she should communicate that to the beneficiaries and keep them up to date on the progress of the matter. Even a legitimate reason eventually runs out. For example, if the executor is ill and cannot work on the estate right away, no doubt the beneficiaries would be patient and allow him or her time to recover. However, if it becomes apparent that the recovery is going to take years, it would be better for the estate if someone else took over as executor.
Communication is very important on an estate. It could be that the executor is managing to deal with the estate without applying for probate, and that things are actually further along than the beneficiary realizes. In that case, the executor needs to keep the beneficiaries informed. Most executors don't actually understand that the residuary beneficiaries of an estate do have a legal right to be informed about what's happening with the assets.
So what can a beneficiary do in a case where there is no legitimate reason for the delay, and the executor just flat out refuses to apply for probate?
Provincial laws allow "any interested person" to apply to the court for directions on an estate.
The phrase "interested person" has a legal meaning, and doesn't just refer to anyone who finds the estate interesting. It means a person who has a legal stake in the estate, in other words the beneficiaries or creditors of an estate, or someone who wants to bring a claim such as a spouse who is left out of the Will.
When you make an application for "directions", you are basically telling the court what's happening (or not happening) and asking for the court's advice and direction on how to deal with it. The court has quite a bit of power to make pretty much any order that it thinks is reasonable and fair in the circumstances. For example, the court might direct that you or another beneficiary should bring an application for probate, or that the executor apply within a certain number of days. There could be other orders as well, if there are assets that are in danger or minor children living without financial support. Don't forget that the court will hear the executor's side of the story as well.
You will definitely need the help of an experienced estates lawyer to make this application successfully.
can executor hold up because they want clearance
ReplyDeleteIf you mean whether an executor can hold up distribution of the estate while he or she waits for a tax clearance certificate, then yes. An executor's duty is to pay all debts before paying any beneficiaries. The clearance certificate is proof that all taxes have been paid. There is a process in place called "interim distribution" (which I posted about recently) by which the executor can choose to pay out the bulk of the estate while holding back enough for taxes, but it's completely up to the executor whether or not he/she wants to do that.
ReplyDeleteThe executor of my dads estate is also the only residuary beneficiary. She refuses to distribute shares of a corporation left to me and my siblings and my stepmom, the executor, until a clearance cert. is obtained. However, she has distributed everything that was coming to her personally (the residuary estate)and has spent a good deal of it to buy a house. I do not see how the distribution of shares needs to be held up as the corporation is not being wound up. Also, could some money simply be held in escrow until the cert. is received...Any taxes owing should come out of the residuary estate, not the corporation anyway. This was the first bequest stated in the will ahead of other bequests that she has already fulfilled. She is also using corporate money for personal and estate expenses. Can I press for the share distribution (my question mark does not work!)
ReplyDeleteMy sister and I are co-executors and the sole co-beneficiaries of our fathers estate. She and her husband have told me we will not be proceeding with probate. No explanation. No discussion. I believe they are facing legal action by creditors due to business problems and I suspect they are trying to hide my sisters inheritance. My father died more than 1 year ago and asset holders (banks, stock co's) have expressed concern when told no probate is forthcoming. I'm concerned that both myself as co-executor and the estate are at risk. What should I do?
ReplyDeleteFirst of all, you and your sister are c-executors so you have as much authority as she has. Secondly, what the heck does her husband have to do with anything? Unless he is also an executor, he has no say in this.
DeleteIf I were you, I'd take the will to a lawyer and get the application for probate under way. If assets deplete or are ruined while they sit there, you and your sister might end up replacing them out of your own money. And it doesn't sound as if she has any, so it's going to fall on you.
She will be asked to sign the probate, of course, as she is a co-executor. If she refuses for no good reason, proceed without her and ask the court to remove her.
Her credit problems are her own. She is making them yours, as well as that of the beneficiaries and everyone who is relying on that will and probate to transfer assets. Talk about selfish!
Lynne
Thank you for your comments and clarity, Lynne. I appreciate it. Most of us are not legal experts. There is much to do in administering estates as it is. Family feelings and politics add another layer of fun and complexity. You said it like it must be. There's a job to do. Stay focused and get it done.
DeleteIs it kind of a dumn question but if there is a will but no executor appointed, does anyone can apply to be appointed as one? If so, is there a limitation period, ie., time limitation to such application? Thank you!
ReplyDeleteNot a dumb question at all actually. The most common situations are that a) there is a will with an executor named, or b) there is no will. Each has its own legal process. The situation you've mentioned is kind of a hybrid of the two. The way to address it is to have someone (the person who would be the administrator if there was no will) take the will to the court and apply. They are basically telling the court that they will carry out the will as it stands in place of the executor. This is a very well known process to estate lawyers. And no, there generally is no limitation period.
DeleteLynne
Hi
ReplyDeleteMy Dad passed away 6 months ago but he was under the Public Guardian. He was in a nursing home and had Dementia. He did leave a Will and I am named in the will. The Executors to date have not filed application in court and are refusing to give me copy of the will. What can I do? I am afraid of them eventually getting approvals and just taking the funds from the Public Guardians. How will i ever find out?
My father passed away 3 weeks ago. My older sister have a written debt to be paid from the estate. My younger sister has said that she is the executor, but refused to prove it to me or allow us to read the will. We have given her notice on 2 occasions of our intention to be paid the money owing to us. She has gained access to his house and has removed jewelry and his car. She is also removing items and selling them at a garage sale every weekend. I have tried to contact 3 seperate lawyers, but no one is returning my phone calls or emails. How can I force her to prove that she is the executor and also gain access to the will?
ReplyDeleteYou are not necessarily entitled to get a copy of the will from the executor, even though the deceased was your father. You are entitled to see it if you're a residuary beneficiary. If the estate owes you a debt, that makes you a creditor, not a beneficiary.
DeleteHave you checked at the courthouse to see whether she has filed for probate? If so, the documents at the court will include the will, as well as the name of the executor, an inventory of the estate, and lots of other information. A search is not expensive. By doing this search yourself (go to the supreme court or queen's bench in your province and find the probate clerk) you can bypass having to get cooperation from someone who clearly isn't willing to cooperate. If she has not filed for probate and she will not give you a copy, you will have to go through the courts to get one. Don't search there until a month or more after your father's death because most wills contain a clause saying that beneficiaries must survive the deceased for 30 days. That prohibits them from filing for probate within the first 30 days.
Also keep an eye on the newspaper near where your father lived for any Notice to Creditors she might publish. Not all executors do this, but if she does, you can give her a notice then.
If she is the executor, she is supposed to remove items and sell them. It does seem to be proof that she's the executor, since she doesn't have the right to do any of that otherwise.
If you call a lawyer who doesn't return your call, that lawyer either doesn't want your business or is too busy to be of any use to you anyway. Not all lawyers do estate work. In fact, most don't. Make sure you find one who does a lot of this kind of work (hint: if he or she lists a whole bunch of kinds of law with wills down at the bottom, that's not your best bet). Keep trying until you find someone who is happy to help you.
Lynne
My sister has a track record of stealing from my parents in the past. How can I be assured that she is the executor? We only have her word and she is ignoring our letters and emails regarding the the 4 1/2 million dollars that the estate owes my older sister and myself. Can she sell everything, including his house without paying debtors. I don't know why I have to wait for her to publish in a newspaper, when she was already given notice of the debt?
DeleteHow can you make a person prove that they are the executor of a will and cause them to provide the will for viewing? I have notified my sister that the my father's estate owes me money and she is refusing to allow me to read the will, and is ignoring to respond to my written requests to have the estate repay an formal debt agreed in writing many years ago. She has also gained access to his house and has removed expensive items and his car.
ReplyDeleteI'm the youngest of three siblings (53). Our Mom died in February. My brothers are quite a bit older than me, and have no business acumen. We all shared power of attorney when our mother was alive; but for some reason, only my brothers were named as trustees of her estate. She has a house in a town that's far away from all of us. My brothers refuse to start private or deal with the estate. The will says that everything should be divided evenly between the three of us. Do I have the right to petition the court to join as a trustee and get probate process started?
ReplyDeleteAnita, I notice that you posted your question 4 times. The first two showed up and then the spam filter took the third and fourth. There is no need to keep posting it repeatedly. You won't see it show up immediately because - as the system tells you when you submit your comment - it has to be seen by me first before it shows up. I do this to keep the spammers (who are mostly people wanting to sell love spells for some reason) off my site. Anyway, I appreciate you posting a comment and I answered your question below. But please be patient and give me a chance to read the incoming mail!
DeleteLynne
My mother passed away in Feb. My brothers and I shared power of attorney while she was still alive and living in a care home with Alzheimer's and dementia. Her will states that her estate should be divided equally between three of us. Only my two older brothers, who have no business acumen were named as trustees. They refuse to start probate to sell our moms home, which is sitting vacant in a town where none of us resides. How can I gain access to join as a trustee or take over the process completely? My brothers aren't able to even use a modern convenience like a computer, fax, or cell phone. The are completely useless when it comes to natters of business. Please help!
ReplyDeleteYou cannot be added as an additional trustee unless the will allows it. That would be so extremely rare that I feel confident it is not in your mother's will.
DeleteYou have a couple of options. Both are easier with the cooperation of your brothers.
If your brothers have not done anything yet on your mother's estate, they can renounce as executors and nominate you as their replacement. You would then be able to apply to the court to be appointed to administer the estate.
If they have already begun acting as executors, then they cannot just quit and hand it over to you. They would require the permission of the court to step down. You would require the court's permission to take over.
If your brothers are not willing to step down, you'd have to ask the court to help. You could ask for the court to remove them, but that's not easy. You might have an easier time getting the court to compel them to start the probate and list the property within a set time. Just be aware that once people start hiring lawyers to force each other to do things, other people take it badly.
Lynne
Long story short- my mother passed away 2 months ago, leaving my brother the executor of the will. Now the problem that me and and my 5 siblings have is that he won't open the will. He was her career and lived in the house with her. There is a mutual feeling that he knows what's in the will and point blank refuses to open the will and has no intentions. So we don't know who any of the benifencies are in the will and we can't do anything, where do we stand or what do we do! Thanks in advance for any help given
ReplyDeleteAs I said in my original post, your only real way of forcing him to get on with it is to ask the court for help.
DeleteYour case is interesting in the sense that none of you know for sure whether you are beneficiaries of her will. Are you sure that there even is a will or do you just have his word for it? However, as the children of the person who passed away, there are two things that I believe allow you to approach the court. One is that you are what we'd call "logical" beneficiaries. In other words, as her children, you are the people who could reasonably expect to be included. The second is that if there was no will or the will was invalid, you would be the beneficiaries according to intestacy law.
Before gearing up for a lawsuit, try other things that might work without having to spend the time and money going to court. Ask the executor in writing to apply for probate or to renounce and let someone else take over. He might not want to do it but not be aware that he can step down. You might want a lawyer to help you write that letter properly. At least once you open the discussion about going forward with the estate, there is a chance of resolving the issues peaceably.
As I said, if he simply will not cooperate or participate, your only way to force him to do something is to go to court.
Lynne
Hello, thank in advance for any advice you can provide...My sister, brother and I are all named executors/trustees on my mothers will. My sister has lived with, and was completely supported by, my mother for about 15 years. My brother lives in the same city, I am out of province. My mother was diagnosed with an aggressive cancer and passed very quickly at home. During the short time my mother was dying she was taken care of by my sister including the administering of very powerful pain medication - and for about 3 months prior to passing my mother was operating at the mental capacity of a 10 year old.
ReplyDeleteAbout 3 weeks before my mother passed my sister took my mother, who was under heavy medication to her lawyer (a very, very close friend of my mothers), they claim it was just a visit. But my brother and I cannot believe that he would not have just come to the house and suspect they altered the will (the dates show otherwise but the cover page and witness page do not align). We have since learned that immediately following my visit with my family (again about 3 weeks before she passed) my sister took my mother to her bank and had her put all her accounts as joint and changed the beneficiary listing on her RRIF. She has since cleaned out the joint accounts. There was also a line of credit that she maxed out and she racked up $11k in credit card transactions (my mother "authorized" the transactions while still alive I'm sure).
I've been advised the bank will disperse the RRIF according to the listed beneficiaries. I would like to just renounce my trustee appointment and pay the tax owning on the RRIF dispersement. What is my total financial liability if I do - or do not - renounce? Can the CRA just collect on the tax owing for the RRIF dispersement? Or can the estate or debtors come after me for what I was left in the will? Can they come after me personally, beyond my inheritance, since I am an executor?
My sister was left my mothers house and property, the "residual" was left to my brother and I - of which there is nothing now, besides the RRIF my sister did not manage to completely steal. This is a small estate (RRIF is $100k plus maybe $300k for the house) so probably not worth challenging and we can't prove impropriety with regard to how the will was executed anyway, it states the change was made a year ago. My sister is also refusing to probate the will and suspect she will immediately submit a Notice of Objection for my trustee status...I have talked with a lawyer briefly about this situation, but did not discuss these topics. Please advise!
What happens if the Executor does not disclose the Estate Account information and provides distribution payment without the accounting details.? Beneficiaries can request the information, but what happens if the Executor refuses to provide?
ReplyDeleteIt certainly does happen that executors refuse to provide information. I usually find that if there is a flat-out refusal to inform those who have a right to be informed, the executor is hiding something. Not always, but most of the time. This is because an executor can be forced by the court to provide the information - in fact, a full accounting - so why would anyone insist on being forced by the court? Why not just cough it up voluntarily without going through the delay, stress, and expense of a lawsuit?
DeleteSend a written demand to the executor, being clear about what information you need, and stating that you are prepared to take it further if you don't receive the information within a stated time. If that doesn't work, your only recourse is to go to court to force the executor to provide the information. Usually this is done in an application called "passing of accounts".
Lynne