In my last blog article, I discussed different remedies that may be available to concerned parties whose interests are being comprised by the action or inaction of an estate trustee(s). Specifically, I looked at what steps can be taken when:
- an appointed or proposed estate trustee refuses to accept the role;
- a person who may have a financial interest does not know who is named in the will as estate trustee or whether they are actually named as a beneficiary in the will; and
- a person does not have information or knowledge of a will but suspects that they may be a beneficiary
In this post, I will continue to outline other areas where estate trustees may be accused of misconduct and remedies that interested parties of an estate can seek…
When an estate trustee does not disclose details of the assets of the estate to the beneficiaries or other persons who appear to have a financial interest in the estate, an order can be obtained that requires the estate trustee to file with the court a statement of the assets of the estate, failing which she may be held in contempt of court, which is a serious offence. One should note, however, that the duty to account to beneficiaries does not mean that the estate trustee always has to give them all available details relating to the estate at all times. As there are certain times in the administration of an estate when the duty to account must be fulfilled, if a Court orders such a statement to be filed, it will be on the basis that the estate trustee failed to provide information when he had a duty to do so.
On the other hand, if an estate trustee files a statement of assets to comply with an order to do so and the details appear to be too scanty, a person with a financial interest in the estate can ask the Court to order the estate trustee to disclose more particulars. In this case, the estate trustee is to be given prescribed notice in order to allow them time to provide the particulars and thereby avoid having to appear in Court over the issue.
Anyone with a financial interest in the estate can insist on a formal accounting, called a “passing of accounts”. This accounting passes through the courts, either with a hearing before a judge or without a hearing. A formal accounting requires that the accounts be put into a prescribed format. An estate accounting is the process of reporting to the residual beneficiaries of the estate how the amount representing their share of the estate was arrived at. It includes a disclosure of the assets the deceased owned on their date of death, the amounts of estate expenses as well as earnings, the amount claimed by the estate trustee for compensation and the amounts held back from the beneficiaries until the final payment has been made to all creditors. One should keep in mind that failure to pass accounts does not necessarily constitute misconduct unless it was reasonably requested by a beneficiary. Requests for an accounting every few weeks or even months would like be held to be unreasonable, but this would be determined by the Court. If the Court decides that an accounting is appropriate, then it will be ordered.
There are also other orders that may be sought from a Court when an estate trustee is being generally uncooperative with respect to his duties as an estate trustee. If you have concerns about the conduct of interested parties in an estate administration, whether they are beneficiaries, creditors or estate trustees, please contact Andrea P. Kelly for assistance.
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Andrea Kelly, Lawyer, has extensive experience in wills, trusts, powers of attorney and estate administration matters. She provides clients with a high standard of timely professionalism and expertise, incorporating a very thorough fact finding process. This is quite often enlightening for her clients and facilitates individually tailored services. If you would like to know more, feel free to use the easy contact form or read Andrea’s bio.