Bildfell Law

Your Rights as Beneficiary of a Will

A beneficiary has rights that must be respected by the estate trustee who is empowered with administering the estate of the deceased under a Will. A beneficiary has the right to certain information and to make an estate trustee accountable. An estate trustee is the person named in the Will to handle the estate administration and wind up of the estate. A beneficiary has a right: to information about his or her entitlement, to expect the estate to be handled properly, and to expect that the estate distribution is not unreasonably delayed and be notification given for any delays. A beneficiary also has a right to an accounting of the estate, to notification about any legal proceedings or claims made against the deceased or the estate, and to cooperation from the estate trustee. If you are a beneficiary of a Will and the estate trustee is not fulfilling his or her duties or obligations, Ron Bildfell is available to help you.

Information About Entitlement
The estate trustee must inform the beneficiaries named in the Will that the deceased left a valid Will. The estate trustee has a duty to inform each beneficiary about of the nature and extent of their entitlement. A residual beneficiary is entitled to receive a copy of the Will in its entirety but a legatee (who is to receive a gift of money or personal property) or devisee (who is to receive a specific gift of real property) is only entitled to a copy of the section that pertains to the gift.

If there is a liability that attaches to the entitlement of a beneficiary, including tax and costs as a result of being a beneficiary, the estate trustee must notify the beneficiary of these liabilities.

The estate trustee should also inform the beneficiaries that creditors will need to be paid first before any distribution can be made. A beneficiary’s entitlement can only be paid once all the debts, tax returns and any amounts owed by the deceased or the estate are dealt with and if the gift has not adeemed (i.e., where a specific gift does not exist or is no longer owned by the testator at the time of death). The estate trustee can only pay a gift to the extent that it has not completely diminished by an abatement (where there are insufficient net assets to satisfy the entire gift).

Estate Administration to Be Handled Appropriately
It is a right of a beneficiary that the estate assets and debts be handled appropriately in good faith by the estate trustee. A beneficiary can expect that the estate trustee will obtain professional advice where it is needed, that the assets will not be misused for personal gain by the estate trustee, that the estate trustee will not demonstrate favouritism or the appearance of favouritism between the beneficiaries and that the estate trustee will maintain an “even hand” in dealing with the beneficiaries. In other words, an estate trustee must not act in the best interests of one beneficiary to the prejudice of another beneficiary, even if that other beneficiary is unborn or unascertained.

Distribution Not Unreasonably Delayed and Notification About Any Delays Given
A beneficiary can expect the estate trustee to not delay the estate distribution unreasonably. In performing the duties required of an estate trustee, it should be anticipated that the estate administration will take at least a year following the death, known as the “executor’s year.”

The estate trustee should inform the beneficiaries if there will be a reasonable delay and the reason for the delay. If there is a lengthy delay, speak to an estates lawyer about whether an interim distribution is warranted in your circumstances.

Accounting of the Estate
Each beneficiary is entitled to an informal or formal accounting of the estate if is requested. A requirement to produce an accounting to the beneficiaries is one of the most common orders made during estate litigation. If the estate administration is anticipated to be ongoing for some time, an interim accounting may be requested by a beneficiary. A final statement of distribution should be provided by the estate trustee at the time of the distribution which sets out exactly how their distribution was calculated.

A beneficiary can also request a formal “passing of accounts,” which is the process of the judge examining the accounting records and deciding whether they are acceptable. Most estates do not entail an account passing by the court unless there is a dispute over the accounting that cannot be resolved between the estate trustee and the beneficiaries, such as about the estate trustee fees in the administration.

Notification about Legal Proceedings or Claims Against the Deceased or the Estate
If there are any proceedings or claims against the deceased or the estate which may affect the entitlements of the beneficiaries from creditors, dependents, a married spouse or the beneficiaries themselves or individuals who expected to inherit under the Will, the estate trustee must notify the beneficiaries about these proceedings and that the distribution of assets will need to be put on hold until these legal matters are dealt with. If it is a beneficiary that is bringing an action against an estate, that beneficiary will not be entitled to have his or her legal costs related to the matter paid by the estate, unless this is ordered by the court.

Seek Cooperation of an Estate Trustee
If an estate trustee is not handling the estate administration properly, a beneficiary has a right to obtain legal representation to achieve a resolution.

A beneficiary also has the option to ask the estate trustee to resign or request removal by the court. Keep in mind that removal of an estate trustee is considered by the courts to be a drastic measure as they generally do not like to override wishes left by the deceased. The court will try not to interfere with the way in which the deceased has set up matters. For example, if the estate trustee makes a simple error but is otherwise co-operative, then or she is not likely to be removed from the role and there may not be a punishment but there will be liability for any errors made.

However, if the behaviour is egregious or significant losses have accumulated or there is much conflict, then a judge has the power to remove an estate trustee and to appoint someone else in his or her place. An estate lawyer can help you to reach as resolution with the estate trustee and is obliged to help you to avoid court intervention.

Use the Legal Services at Bildfell Law
If you need assistance in enforcing your rights as beneficiary of a Will, Ron Bildfell, lawyer in Sarnia can help. An estate litigation lawyer can review your specific situation and advise you about your legal options or advocate for you in communication with the estate trustee or other beneficiaries. Contact us today at Bildfell Law at 519-339-0440. At our firm the first half hour of our law service consultations are always free.