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.
there is no communication between the siblings. how can i obtain a copy of the will in bc canada?
ReplyDeleteI assume that a parent has died. Otherwise nobody is entitled to see anyone's will.
DeleteI 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
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 ?
DeleteHi Bren,
DeleteI 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
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 ?
ReplyDeleteThanks
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.
DeleteLynne
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?
ReplyDeleteYou 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.
DeleteLynne
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.
ReplyDeleteI would think it would be a lot cheaper to ship a cheque to someone for signing rather than bring the person to the cheque.
DeleteAlso, 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
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
ReplyDeleteYour 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.
DeleteAnother 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