Q: I am one of the beneficiaries in my uncle’s estate. He died over a year ago and I still haven’t got the money I am entitled to under the will. Why do estates take so long?
A: The process of settling an estate can take a long time for many reasons. When an individual dies, it is up to the executor to act as the legal representative of the deceased. In most cases, he will take the will to a law office and the lawyer will assist in settling the estate.
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If there was no will or no surviving executor or those named are not able to do the job, an administrator must be appointed by application to the court.
The job of the executor/administrator is to determine what assets the deceased person had, make sure all the debts and taxes are paid and distribute net assets to beneficiaries named in the will.
If there was a spouse or dependent children that were not adequately provided for in the will, the finalization of an estate is delayed and an application is made on their behalf.
The executor and lawyer determine the assets and debts, then letters probate may need to be applied for. The executor makes application for them to the Court of Queen’s Bench for the court’s formal confirmation that the will presented and the executor presenting it are the true will and executor of the deceased.
With the court sealed letters probate, any institution such as a bank or land registry system may deal with that executor and follow the will’s instructions on the disposition of the deceased person’s property.
Letters probate is always required where the person who died held land in his name.
Also, banks and other financial institutions will require them where there are significant deposits in their institutions.
Generally, the law office will help the executor to determine the assets owned by the deceased and their value at date of death.
Letters are sent to each bank where they held accounts, pension and insurance companies, government departments regarding Old Age Security or Canada Pension Plan benefits and other entities in which the deceased might have invested money or be owed money.
Debts have to be determined and paid. If the deceased was in active business at the time of death, a notice to creditors posted in the local paper alerts creditors to submit their bills. Without taking this step, the executor could be personally liable for unpaid debts.
All income tax for the deceased must be paid. The final tax returns are prepared, usually with the assistance of an accountant, and after the notices of assessments are received, most executors will request a tax clearance certificate from Canada Revenue Agency, which certifies that all amounts for which the deceased was liable have been paid.
If the executor does not get this certificate, he can be liable for any unpaid tax the deceased person owed.
This step of requesting the certificate does not take place until the tax returns have been completed and the notices of assessment are received, so it is late in the settlement of the estate.
It can be many months before that final certificate arrives.
