A person has the right to choose who will handle their estate after they pass away. That person, known as the executor, is appointed in an individual’s Last Will and Testament. In British Columbia, courts give a high degree of respect to a will-maker’s choice of executor.
An executor has many duties and responsibilities, including communicating with beneficiaries. It is a complex role with some degree of tension built in, as an executor must act in the best interest of the estate and the beneficiaries. What recourse does a beneficiary have if the executor ignores them or the executor fails in their duties to the beneficiaries?
An executor plays a very important role in managing a deceased’s estate. Generally speaking, an executor must see to the following essential estate administration tasks:
Depending on the situation, the executor may have additional responsibilities, including involvement in estate litigation brought by a disappointed beneficiary seeking to vary the Will or wills disputes attacking the validity of the Will on the basis of undue influence or lack of capacity.
In addition to the general list discussed above, executor’s duties also include an overarching responsibility to keep beneficiaries informed. An executor is obligated to keep beneficiaries “reasonably” informed throughout the estate administration process and to answer inquiries made by beneficiaries in a timely manner. Beneficiaries should not expect detailed updates or accounting in the first few months of the estate administration process.
What is reasonable depends on the circumstances, but typically speaking, the executor should communicate with beneficiaries about the probate process, expected timelines for distribution of the estate, and any potential delays. In all cases, an executor should communicate in a respectful, clear, and timely manner. If in doubt, an executor should err on the side of caution; excess information is preferable to lack of information about the estate. Withholding information and ignoring communications can lead to distrust and unhappy beneficiaries.
An executor owes a fiduciary duty to act in the best interests of beneficiaries. They must act in good faith. That being said, executors are allowed some latitude to complete their duties and should not be micro-managed be beneficiaries. Estate administration is complex and can take months or years to complete. An executor is not required to consult with beneficiaries about each decision, nor is an executor obligated to provide documents to beneficiaries on an ongoing basis. Beneficiaries are not entitled to minute-by-minute updates on the probate process or bank account balances, for example.
Instead, beneficiaries should be provided with enough information to ensure the estate administration process is progressing and that the estate is being administered in accordance with the terms of the Will. At the start of the process, the executor must provide notice to each person with an interest in the estate. That notification should indicate what the beneficiary is entitled to pursuant to the terms of the Will. An executor can—but is not required to—provide a copy of the Will to a beneficiary, unless the Will is probated, in which case the executor must provide notice to each named beneficiary along with a copy of the relevant portions of the Last Will.
Beyond that, the executor should keep beneficiaries reasonably informed about estate assets and estate property and provide an accounting of the estate in a timely manner. Again, while there is no set time line, it is good practice for an executor to keep anyone with an interest in the estate updated on their potential inheritance and the expected date for distribution of estate assets.
If delays in the probate process, estate litigation, or a wills dispute arises, the executor should disclose that and provide periodic updates to the beneficiaries.
Beneficiaries can and should make inquiries of the executor if they want information pertaining to estate-related issues. After all, what an executor views as “reasonably informed” may not line up with the beneficiary’s view of what is a reasonable amount of information. In many cases, simply asking for updates or information from the executor is enough. Executors are often a friend or family member of the deceased, with no previous experience acting as an executor. They have their hands full with estate administration tasks and may forget to keep beneficiaries posted.
All communication with the executor should be clear and courteous. Estate matters can be contentious and highly emotionally charged. A beneficiary should not take that emotion out on the executor. Communications can be more informal, e.g., emails and phone calls. If emails and calls are not being returned, a written letter from the beneficiary to the executor raising specific concerns can prompt the executor to address the issues.
A beneficiary who feels the executor is not communicating has options. If the executor refuses to respond to requests for updates or to provide information, beneficiaries can hire an estate lawyer to assist them in obtaining information. A written letter from an estate lawyer can be very effective at getting an executor’s attention.
If the executor fails to reply or does not provide the information sought, the estate lawyer can bring an application to court. For example, if the executor is not communicating with beneficiaries and delay is becoming an issue, a court application can be brought to compel the executor to complete the administration of the estate and distribute the estate’s assets. BC courts can penalize an executor who fails to answer beneficiary inquiries by ordering him or her to personally pay some of the legal costs of the estate.
When an executor fails to act, refuses to communicate, or is administering the estate too slowly, the best plan is often to bring a court application to compel the executor to fulfill their duties. The court can order the executor to complete administration of the estate and distribute estate assets. This is in many cases the best plan because it moves the process along and avoids the cost and delay associated with removing an executor.
In some cases, a petition to remove an executor may be necessary. A skilled estate lawyer can advise you on whether this is advisable in your situation. Remember that a will-maker’s choice of executor is given a high degree of respect by the courts. As such, there are only certain types of executor misconduct or failures that would support an application to remove the executor.
Unreasonable delay, failure to act, dishonesty, conflict of interest, and mismanagement of estate assets are types of executor misconduct that may constitute grounds to remove an executor to protect the interests of the beneficiaries. Generally speaking, hostility between executor and beneficiaries is not on its own sufficient to warrant removal of the executor and replacement with a new executor.
Beneficiaries who believe an executor’s duties were not properly performed can also demand a “passing of accounts.” An experienced probate lawyer can assist you with this. The process permits the probate court to examine the executor’s conduct and fix the executor’s compensation accordingly. Incompetence on the part of the executor and the success (or lack thereof) achieved in the administration of the estate can impact remuneration paid from the estate to the executor.
Courteous and transparent communication between executors and beneficiaries is the ideal. Unfortunately, estate administration does not always go so smoothly. Beneficiaries are too often left in the dark by executors.
If the executor is not communicating or meeting executor’s duties imposed by law, we encourage you to reach out to discuss your options. A conversation with an experienced estate lawyer can help you determine whether the actions violate the executor’s duties.
Our deep understanding of estate litigation allows us to confidently manage executor disputes. We can intervene on your behalf in communicating with the executor, advise you on whether you’re in a good position to challenge the executor, and help determine whether commencing legal action for executor misconduct is in your best interests.
Our team at Onyx Law Group is committed to fully understanding our clients’ concerns and is dedicated to offering legal solutions to meet their personal and practical objectives. At Onyx Law, we approach our estate litigation practice knowing that every case is unique and every client deserves understanding and compassion.
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