The Executors Year

In the ordinary course, estate trustees are permitted a period of one year from the date of the death (sometimes described as the executors year) to gather in and realize estate assets, absent special circumstances that might indicate an abridgement of this one year period.

Re Engledow Estate 2001 CarswellOnt 2453

In Currie v Currie Estate 2005 PESCTD 64 the general rule was quoted from Feeney On Wills:

 

“In Baker v. Baker Estate, [1986] N.BJ. No. 185 at para 53, Godin, J. referred to Thomas G. Feeney, in The CanadianLaw of Wills, voL 1, Probate at p. 176:

(d)      Realization of Assets (The ‘Executors Year)

The executor must not unreasonably delay in getting in the assets and settling the affairs of the estate and he will be personally responsible for any loss occasioned by undue delay. There is no hard and fast rule as to what constitutes undue or unreasonable delay, but it is the practice to speak of the executor’s or administrator’s year and the courts attach importance to the question whether the alleged failure to convert or realize assets which resulted in the loss to the estate occurred within or beyond a year. Therefore, all investments which are not proper to retain should be realized within a year of the testator’s death or, in the case of an administration, within a year of the date of the grant.  It is the practice of the courts to consider that the estate ought to have been reduced to possession at the end of a year and to allow interest to then become payable on legacies, if there is any delay.”

 

The “executors year” developed as a rule of thumb  in the  common law, and provided that the executor of an estate has 12 months from the date of death to

call in the assets of the estate, pay the debts and liabilities, and to distribute the net assets to the beneficiaries in accordance with the provisions of the will.

The entire rationale for the rule is that executors must not unduly delay in the administration of the estate.

The Currie case  provides that if this is not accomplished within a year, the beneficiaries have the right to demand interest on their gifts and to call in the executors to explain why the administration of the estate has not been completed.

There are of course many complicated estates together with litigation and other such difficulties that can easily delay the administration of the estate well

longer than a year. Some clauses in wills also give executors wide latitude in determining how and when to realize the estate, and these clauses are often

relied upon by executors to explain why the administration of the estate is taking longer than one year.

In the experience of disinherited.com most of the complaints relating to the executors year is often related to an executor that either cannot or will not deal with the estate for various reasons, usually emotional, or they are simply power tripping over the other beneficiaries and literally keeping them in the dark.

If either of these are the case scenario than the executor is typically at fault and may be removed as executor for proper reasons.

Trevor Todd

Trevor Todd is one of the province’s most esteemed estate litigation lawyers. He has spent more than 40 years helping the disinherited contest wills and transfers – and win. From his Kerrisdale office, which looks more like an eclectic art gallery than a lawyer’s office, Trevor empowers claimants and restores dignity to families across BC. He is a mentor to young entrepreneurs and an art buff who supports starving artists the world over. He has an eye for talent and a heart for giving back.

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