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Monday, May 28, 2012

How long is an estate supposed to take?

Being involved in an estate is not a pleasant experience. Not only have you lost someone important to you, but now you're bogged down in paperwork and family arguments. And it seems endless, doesn't it? Why do estates just seem to drag on forever?

The length of time required to wrap up an estate is one of the chief complaints I hear from beneficiaries. Of course it's even worse when the executor doesn't communicate or dissipates assets, but the passing of time is always tough on those who just want the whole thing to be over.

How long is an estate is supposed to take? And if it's taking too long, what can be done about it?

There is no deadline by which an estate must be wrapped up. This is because estates vary so widely. Some people own businesses when they die. Some own houses in other countries, time shares, collections (art, hockey cards, silver spoons), antiques, literary rights, pensions, or unusual assets such as airplanes. And others pass away leaving simply their home and a bank account. Some estates require trusts to be set up or wound down. With such a variety of tasks needing to be done by an executor, it would be impossible to say that every estate must be wound up within a certain number of months or days.

Having said that, there are some deadlines and rules that will give at least some structure to the estate.

There are deadlines by which tax returns must be filed for the deceased person and for the estate itself. These tax deadlines are fixed regardless of what's going on in any given estate. Many simpler estates are wound up quickly enough that only one tax return is needed whereas a more complex estate may require returns to be filed annually for a few years.

There is also a common-law concept known as "the executor's year" which will interest beneficiaries who have been waiting a long time for an estate to wind up. I often speak with people who tell me that an estate has been open for ten or fifteen years while an executor farms the estate land or lives in the estate house or otherwise benefits from the assets of the estate. The only reason this is tolerated is that the beneficiaries haven't yet become aware of their rights under the executor's year rule.

The concept essentially states that an estate should be wound up within a year of the death of the deceased. Any estate where there are no legal challenges, no disputes and no unusual assets to be dealt with should be finished within a year. By then the beneficiaries should have received their shares and signed off Releases.

This is only a guideline. Obviously those more complex estates I mentioned above may take longer. If a company must be sold or several houses put on the market, this could well extend the estate past a year. As long as the executor keeps things moving as best he can, this is likely the best that can be expected.

In some cases it becomes painfully obvious that the executor is making no attempt to wind up the estate. In such a case, the beneficiaries can use the concept of the executor's year to try either to get the executor moving or have the executor removed. This would involve an application to the court to explain the situation to a judge and ask the judge for help in lighting a fire under the executor.

Anyone considering what to do about an executor should understand that if they present a full, accurate description of what is happening, the judge will most likely take steps to get the estate moving. In my experience, judges are not eager to remove executors entirely, but are more than willing to see that an executor does the job properly.

Before taking legal action like this, I encourage beneficiaries to ensure they have all the facts. Specifically, make sure you understand any provisions of the will that control when an inheritance should be paid. For example, sometimes a will states that a person should receive an inheritance at a certain age, after a specified number of years, or after a certain contingency is met (such as getting a post-secondary degree). It could also be the case that another person has a life estate (i.e. a right to use an asset for life) and you are only supposed to inherit the asset after that person passes away.

The key to understanding why a given estate is taking so long is communication between the executors and the beneficiaries. Unfortunately, communication is too often poor or non-existent between the two groups.

34 comments:

  1. there is no communication between the siblings. how can i obtain a copy of the will in bc canada?

    ReplyDelete
    Replies
    1. I assume that a parent has died. Otherwise nobody is entitled to see anyone's will.

      I also have to mention that you haven't said anything about whether you're a person who is entitled to have a copy. Just being someone's child doesn't entitle you to see the will. If you are a residuary beneficiary of the estate, then you are entitled to obtain a copy of the will.

      Start with the probate court. If the will has been sent to the court for probate, it is available as a matter of public record.

      If this doesn't work, you must deal with the executor. Make a request in writing for a copy (either letter or email). If your request is refused, you may have to hire a lawyer to get a copy of the will for you.

      Lynne

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    2. Yes.. and here we go..why is it so hard to get a copy of a will of your decease parent. If there is nothing to hide ?

      Delete
    3. Hi Bren,

      I have to make an assumption here. I assume that you have asked for a copy of the will from the executor and he or she has refused.

      It's not usually about having anything to hide. Only people named as residuary beneficiaries are entitled to have a copy of the will who names them. Even if you are the child of the person who died, there is no automatic right to have a copy, if you're not in the will.

      Sometimes executors will decide to give a copy of the will to a child of the deceased even though the child isn't in the will. They tell me they do this because they just don't want trouble. Other executors will stick to the rules more closely because they are trying to do everything by the book. Still others will resist giving a copy of the will until someone hires a lawyer and the lawyer asks for it. The executor then gives a copy simply to avoid having to go to court over it.

      Another possibility is that you ARE named in the will and you still can't get a copy. If you have allowed sufficient time for the executor to get organized and see a lawyer about what to do with the estate, there should be no reason for that executor not to give you a copy. Maybe you have one of those executors that I call Little Napoleons - the ones who let a bit of authority go their heads.

      Lynne

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    4. My mom was in a home several years with Dementia before my dad did up his will, the executor states everything was left to mom automatically, if this is so why did the executor have to waste time getting his will probated? I am a beneficiary in the will but after 2 years I have not recieved anything from the lawyer or executor, no statements from anything. She has a vested interested in my dads home and is delaying everything. My mom past away in December 2019. Is it true she only has a year to settle ? And can I get her taken off as executor if she has a vested interest in buying the house?

      Delete
  2. My Aunt passed away in August 2016. I am one of several beneficiaries. We all received our share from the estate in November 2017, and a retention was made for tax purposes. This is now May 2019 and still await receipt of the remaining balance. Last time I received a response from the Solicitors was December 2018 when I was advised that it will still be a lengthy wait for finalisation as they were waiting on Canada Revenues Agency for finalising income tax. I feel this is quite a long time to wait for an estate to be wound up. I live in Scotland and unsure of the Laws in Canada. Could you advise me ?
    Thanks

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    Replies
    1. I agree that this does seem like a very long time to wait. Canada Revenue Agency does take a long time to issue those tax clearance certificates. You can count on 6 months or more from the time the executor requests it from CRA. I guess the question that would be most informative for you to ask the executor (or his solicitor) is when the application was made. That way, you're not counting your 6 months from an arbitrary date but can make a more accurate estimate of how long it might take.

      Lynne

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  3. My father passed away at the end of 2016. It took until 2019 to sell his house. There would be a capital gain from 2016 to 2019. Is it necessary to file taxes as a Trust after the first year?

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    Replies
    1. You are correct that there would be a capital gain. It would be the usual procedure to file a T3 trust return to report and account for that gain. It's probably a good idea to consult a tax accountant on this. I know that income from an estate can be allocated out to beneficiaries rather than claimed by the estate itself, but I don't know all of the CRA rules about when that can happen.

      Lynne

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  4. My mother passed away in September 2018 in Ontario. My brother who lives in Montreal and myself living in Alberta are executors and the only beneficiaries of her will. I have done all of the care taking and financial support of my mother for the last 12 years. My brother attended her funeral.....Her estate account is with a top 5 bank in Canada. We have no access to this account to pay her estate taxes and the CPA without each other's signatures. Is both of us flying to Ontario to sign a cheque seriously the only option???? I personally do not have the money to fly half way across the country to sign a cheque.

    ReplyDelete
    Replies
    1. I would think it would be a lot cheaper to ship a cheque to someone for signing rather than bring the person to the cheque.

      Also, depending on how well the two of you work together, you could sign a handful of cheques and give it to the other executor on the understanding that he will discuss each cheque with you before using it.

      Lynne

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  5. My uncle passed away April of 2017. My father and two brothers and one sister are beneficiaries of the will. All of which live outside the county of Canada. My uncle has been signed off as executive. My uncle did not have a will. He has a bit of money in USA accounts plus a large amount in gold blocks etc. My uncle is dragging and not informing the brothers of amounts plus timeline. It seems like it is taking much too long to settle. What are my fathers right(lives in Germany). What can I do

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    Replies
    1. Your information is contradictory. You said there was no will, but your father et al are the beneficiaries of the will. I'll assume your relatives are beneficiaries on intestacy.

      Another important question in my mind is in which country your uncle (the deceased one) lived and in which country your other uncle (the living one) lives. The question of residency matters because it determines whose laws apply to the estate.

      I'll assume that the estate is happening in Canada for the simple reason that you came to a blog called "Estate Law Canada". Sometimes I make all these guesses as I am here and I guess wrong, but let's give it a go.

      Estates without wills usually do take longer to administer, for several reasons, but even with that in mind, it seems to me that enough time has passed. If there were legitimate reasons for delays, the administrator should have communicated those. Beneficiaries have a right to a timely settlement of the estate, but enforcing that right can only be done through the courts.

      Do not rely on the estate lawyer (if there is one) to assist your father. The estate lawyer works only for your uncle who is administering the estate.

      Most likely, your father will have to hire a lawyer who practices in the city in which your living uncle resides. Or as close to it as possible. This doesn't necessarily mean there has to be a lawsuit, but your father needs someone local to contact the administrator to demand some answers and some immediate action. If he will not comply or you find out something is seriously wrong, then the lawyer might have to resort to the court to compel your uncle to account, and to get on with it.

      Lynne

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  6. My grandfather passed away in April 2019 and it's now Jan 2020 to my knowledge my Aunt Sister and Myself are the beneficiaries but my aunt is in charge of everything. She has not voiced anything to me and my sister other than "no ones contacting her and she's contacting a lawyer to see what's up" so my question is how do I go about finding out if I'm able to view his Will if I'm entitled to or not and where I would go to find it.

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    Replies
    1. So your aunt is the executor and she is saying that nobody is contacting her? Who exactly does she think is going to contact her? She's the one in charge! She has to be the most clueless executor I've heard about in a long time.

      Unfortunately, your aunt is the one who is supposed to find the will and give copies to the people who are entitled to see it. Good luck.

      Lynne

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  7. My mother passed away Feb 3, 2019. My brother is an executor. We are estranged. I am an equal beneficiary. He has moved his sister in law into the family home rent free to keep the insurance down. The estate has gone through probate but he has not listed the property yet. He has not responded to any of my emails. Can I force the sale of
    The property ? He is a wealthy man and is in no rush to finalize the sale of the estate. Am I entitled to be informed of when the property will be listed ? The will clearly states that all property and assets are divided equally amongst the 4 children.

    I’d greatly appreciate any input before I start legal proceedings against him.

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    1. Hi Angela,
      If an executor is taking too long to administer an estate, then yes a beneficiary has the right to enlist the assistance of the court to keep the executor on track.

      However, to be honest, I don't find a year into an estate to be exceptionally long, especially since we are no in the middle of winter and few properties sell in the winter. It can take a long time to gather information for probate, get the application through the court, find out all the bills and pay them. All of that (and much more) has to happen too. What I do find very discouraging about your situation is that you are not being given any information as to WHY the house hasn't been listed. Are there repairs being made? Renovations or updates? Is there a tax tangle to figure out? It would be good to know what's going on.

      I hope that whatever lawyer you hire will start off by writing a letter to the executor to find out the reason for the delay. If there is a good reason, that's one thing. If he is just procrastinating because his sister in law needs a place to live, then that's another thing, and of course is unacceptable. Find out all you can before you start formal legal proceedings.

      Lynne

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  8. I'm curious aswell. I'm in BC Canada. I'm one of 3 beneficiaries. He passed away December 2016 and I'm still yet to see a penny. The lawyer advised me September 2017 would be the distribution date. Been over 3 years now. The lawyer said he filed probate and should recieve grant for probate in 3 weeks. He emailed me 7months later saying he just got probate. Is this really how long this all takes?

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    1. Hi Lawson,
      No, the pace of the estate you're involved with is not normal. The courts in different places work at different speeds depending on workload, staffing, etc. but I know of no jurisdiction that takes 7 months to turn around a normal probate application. Here where I work, we get our probate orders back within 2 weeks. However, if there is an issue with the will or someone disputes it, then sure it can take 7 months. That would make sense. So the problem in at least in part a lack of information. If there has been a dispute or some kind of hearing that has caused a delay, then you should have been told about it.

      As for waiting for 3 years for your inheritance, that is really unusual. I don't know anything about the estate so there could be a lot of work to be done such as businesses to wind down or properties to sell. Those things take time and a beneficiary doesn't have much choice but to be patient while the executor works through the estate. But again, do you have any information about that?

      It seems to me that at this point, you should be demanding a full accounting of what has been done, what is available for distribution, and what is left to be done.

      Lynne

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  9. My father passed away in January 2019 my siblings and I went to a lawyer to file papers for probate the lawyer forgot to file them so we had to go back in September to re do the paperwork called the court March 23, 2020 and there is no record on file for my dad's estate what do I do

    ReplyDelete
    Replies
    1. This doesn't sound good, to be honest. If the lawyer has filed the probate application, the record would show up, regardless of whether the grant of probate had issued yet. I suspect the lawyer still did not file it. It's possible the court made an error, but that seems less likely to me.

      Why not call the lawyer and advise of your telephone call to the court. Demand to know when the application was filed and to see some proof of filing. If the lawyer cannot or will not give that to you, get all your stuff back from the lawyer and go to a different lawyer. This one doesn't seem to intend to do the probate for you.

      Lynne

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  10. Hi, I have a copy of the will, My brother is the executor. My Dad died March 2016. It is now May 2020 and it's still not all finalized. I have received some of the money but it doesn't seem to add up. My brother and I were the only two beneficiaries, do I have any right to see where all the money went? My Dad may have had some debts but I find it hard to believe he had that much debt.

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    1. Hi Marco,
      When you say you are the only two beneficiaries, I'm going to assume you are talking about a situation in which you and your brother are sharing the estate equally (as opposed to you get a set sum and he gets "the rest"). If I'm correct then yes, you are entitled to see where the money went.

      Four years is a long time for an estate to wind up. Sometimes there are good reasons for it, such as winding down a business, selling properties, dealing with legal questions in court, etc. Other times, there is no good reason. I can't really speculate on that with so little information. But I can say that after that much time, the executor really should be giving you information and answers.

      Every executor is required to give residuary beneficiaries an accounting of their transactions on the estate at any time it is requested. I'd say waiting four years is enough time.

      You should ask for an executor's accounting. A full, complete, accounting. Not a couple bank statements, but a chronological accounting of all moneys in and all moneys out. It should include a list of every asset that was sold or cashed in and what he got for it. Also, a list of every bill he paid and when he paid them. He should show all interest that was earned, all legal fees paid, etc so that you can see where every dollar went. You're entitled to this. Give him a reasonable time to come up with the paperwork.

      Lynne

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  11. It's been more than a year since my mother died. My brother is executor. Her will and estate are simple, we are the only two beneficiaries, she had no debts and owned her house fully. My brother notified me 5 months after the death he'd cleared the house, which surprised me because he gave me the option of purchasing mom's possessions a month after her death in which case I had 48 hours to empty the house of everything.
    The most recent communication concerned selling the house. He planned to hire contractors in order to upgrade for top dollar. This means it could be many more months to sell as we have Covid 19 complicating everything.
    My brother maintains he has sole discretion in executing the estate. Is there anything that can be done, I just want this done so I don't have to deal with him.

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  12. My aunt passed away on July 19, 2020 in BC. She had sold her property, cashed her assets and was living in an extended care home. Since she was 97 already I would hope that the executors (for the last five years she appointed her brother, my uncle) would have already had a good wrap up of her assets. When she passed she had already been determined incompetent for at least a year, I think my uncle may have changed her will like he did as executor with my other aunt when she was no longer competent. This latest aunt always said she would leave me something because she knows what it is like to live on your own and be poor. She has close to a million dollars in assets. So, I checked the probate courts for BC and their is no application in her name. When should I expect to see something at least in probate since her only bill was to the nursing home she died in? Why would my uncle not tell me that I am a beneficiary to ease my mind, he knows I am living in poverty?

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  13. Perhaps your uncle hasn't told you you're a beneficiary because you are not one. That's a possibility, though I hope it's not the case. Verbal promises to by your aunt you to leave you something are not binding.

    The other possibility is that he is still getting organized. It has been less than a month since your aunt passed away. It takes a while to see a lawyer, compile an inventory, and do all of the other things he has to do following her death.

    I am not surprised that you didn't find anything at the probate court, for the same reason. It's much too soon. Most wills contain a statement that beneficiaries have to outlive the testator by 30 days, so the paperwork could not be filed before that time is up.

    Not every will goes to probate, but if your aunt has a million dollars in assets in her own name, I expect that her will is going to have to go through probate. So sooner or later it will show up there. Give that a bit more time - at least a couple more weeks - and check again.

    Lynne

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  14. My father died jan 2018 . He had no will. Everything went to my mother. My mother died july 2018. She wrapped up all debts and the house was paid for. She knew her time was limited. The will simply stated everything split 50 50 between my brother and I. My brother did not list their home til August 2019. It sold September 2019. He told me all he had to do was the taxes. It is now almost september 2020 and I have received no information. Requests for an accounting of the estate have been ignored or refused. He said I can see it when everything is finalized. There is no reason for this delay. Covid in March but that was 7 months after the house sale. My mother also told me of an account my father had that he made joint with my brother. It was 40000+ dollars and my brother at first said it didnt exist but I pressed on knowing it did. My brother kept this out of the estate saying he invested for the grandchildren his son and my daughter. 14 and 12. And that he would administer it to the children when he saw fit as I could not be trusted to not steal from her. He said this was my father's wishes. My father did not leave a will. My brother and I are estranged and dont feel he had the right to keep this money out of my mother's estate and tell me I am allowed no access. I do not trust him to look out for my daughter. If he simply keeps the money I would have no legal recourse. The house sold 85000. There were some minor renovations done but my mother had previously arranged most of them. She told my aunt that my father had made it so she would never have to worry about money and she was "well off". She said this in may 2018. She died in july. My brother says there is about 78 000 before taxes in the estate to be distributed. This does not compute to me. He also said maybe he would check with lawyer to see if money could be distributed before tax clearance but he probably wouldn't becaus4 of my "recent outbursts) outburst equal asking for an accounting of the estate and estimated date of settlement and after being ignored said I was going to consult a lawyer. He the threatened to ensure the 40 000 account was 30 000 to him and 10 000 to my daughter claiming that 20 000 was his because it was joint leaving 20 000 to be split to the kids. My brother contributed no funds to this account. What's your take on this?

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  15. If I want furniture from my dads estate do i need to purchase it from the other beneficiaries? Please explain how that works

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  16. Hi! Thanks for your blog post.

    Question. My sister and I are only entitled to a portion of shares (split between 5 people) for my grandmas estate. Does the whole estate need to be settled at the same time? Or could just the share portion be settled. It’s been 6 yrs since she died. There are 2 executor one is a lawyer.

    Thanks for your time!

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    Replies
    1. Hi McLean,
      It would be extremely unusual for an estate to be settled share by share. If there is an issue of some kind (tax, sale of property, legal dispute, etc) then it affects all 5 of you equally. It would be impossible to know what one is entitled to receive without knowing what all are entitled to receive, and that means all issues have to be dealt with first. I have to say, though, that 6 years is a pretty long time. Perhaps it's time you demanded a full accounting of their progress.

      Lynne

      Lynne

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  17. I want to find out that my father died in March 2020 with handwritten will and with remarks or deletion without initials but there are two witness but one witness is beneficiary as donation and I am only family for my father, my father family one has executor and second is me if the relative dies or unwilingness, then I can be executor. The executor and their lawyer making stories and nothing much happened so please guide me how I can apply for probate in Ottawa and remove the executor

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    Replies
    1. You're the alternate executor, so you cannot apply for probate while the first-named executor is willing and able to do it. From what you've said, the executor has taken the will to the lawyer and is proceeding with the estate. You can ask him or her if they would like to step down, and if so, you could simply step in and take over. Otherwise, you can't do anything without the help of the court.

      You cannot remove an executor because of a perceived issue with the will. If you believe there is a reason that the will is invalid, you should hire a lawyer. The lawyer will file a caveat or other document that will prevent the probate from going through until a judge has heard your concerns. However, be aware that the judge will not consider removing a properly named executor without darned good reason. In my opinion, the witnessing of the will as you have described it is not a good enough reason.

      Sometimes when there is a problematic will, I will still send it to the probate judge. I'll explain to the judge that I see the problems and understand them, but say that I want the court to have the full picture of what the deceased tried to do. After all, I'm not the judge. I'm not the one with the legal power to decide a will is not valid. Perhaps the executor and the lawyer are taking a long time because they are trying to decide how to approach this unusual situation.

      You can make your impatience and concerns known to the executor but in my opinion you do not have any grounds for removing him or her.

      Lynne

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  18. The executor of my mothers estate has waited for 10 months before applying for a certificate of appointment of estate trustee after the bank refused to release the funds.He has since received the certicate from the courts a month ago and I have still not received my inheritance(cash).Mother passed away August 2019.How long should I wait or what can I do? We do not have a good relationship.Is this theft, since the estate is completed?.Can I go to the police?

    ReplyDelete
    Replies
    1. October 30th, 2020. You must go to the court finding out what exactly went on. The Judge who issued. If you are in the will and this person has left you out he will have defend against why he did. Work on it quick time is a essence.

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