Information for Beneficiaries

If there are no disputes about an estate, beneficiaries do not generally need a lawyer. In some cases, beneficiaries may wish to consult a lawyer before agreeing to a proposed distribution of the estate. If there is a dispute concerning the estate, beneficiaries may want to seek legal advice. The executor or administrator acts for the estate, not the beneficiaries. When there is a conflict, each party may require independent legal advice.

In some situations, it may not be easy to find out if a deceased person left a Will and where the Will was kept. If a lawyer did legal work for the deceased, the Will may have been left with them for safekeeping. Sometimes, a Will is left in the courthouse registry. You can search the registry by sending them a letter with the deceased person's full name, last known place of residence and date of death. There is a fee for a search that must be sent in with the request.

If you think someone has a Will that you are looking for, you can serve notice on that person to appear in court. The court can order them to produce the Will. If the person does not have the Will, they can be required to state under oath that the Will is not and was never in their possession. They can also be required to give any information they have about where the Will is located.

If there is doubt about whether a Will is valid, a request can be made to have it proved in solemn form. This means that a court will formally examine and determine the validity of a Will. If the court agrees to the request, it will hold a hearing for evidence to be presented. This will include evidence from witnesses such as people involved in the preparation of the Will or medical experts. An interested party may make a court application to have the court determine the validity of a Will if they have reason to believe:

• the Will was improperly signed or witnessed
• the deceased lacked the mental capacity to make the Will
• the deceased was unduly pressured into making the Will

Dependant spouses or children can challenge the distribution of an estate even if the Will is properly made. They can do this if they think they were not properly provided for under the Will. Someone can also challenge a Will if they looked after the deceased with the understanding that they would benefit from the estate. For example, this may happen if they gave up their home and occupation to live with the deceased on the understanding that they would inherit part of the estate.

It is the executor's or administrator's job to make sure that the property of the deceased is given to those named in the Will. An executor or administrator who does not properly distribute the property may be personally responsible. There are ways of checking to make sure that the estate has been properly distributed.

In many cases, a Will must be probated with the court before any property is distributed. This must be done if distributing the estate requires any land transfers. Institutions holding property of the deceased such as banks may also require that the estate be probated. Even when a Will is not probated, banks and other institutions may require any beneficiaries named in the Will to agree to the release of money or property.

Executors have 60 days from the date of death to apply for probate. If they do not, any interested person can serve notice on the executor to appear in court and produce the Will. At that time, the executor will also be required to accept the responsibility of being the executor. If they do not, the court can appoint someone else to be in charge of distributing the estate.

A person interested in the estate may apply to court for an order requiring the accounts of the estate to be filed with the court. This can be done at any time if they allege that the person distributing the estate has been negligent or is wasting the estate. The accounts are the records of how the assets of the estate have been handled. If an executor or administrator is not fulfilling their duties or is defrauding the estate, the court can remove them.

An executor or administrator is required by law to pass the accounts within two years of when Letters Probate or Letters of Administration were granted. This involves filing documents with the court setting out all the property of the deceased and how the estate will be distributed. Accounts also must be filed, even if two years have not passed, when the administration of the estate is complete. This is also the case where the executor or administrator wants to be discharged from their duties.

If an executor or administrator fails to pass the accounts when required, a beneficiary can serve a notice requiring them to be filed within 30 days. If they do not do this, a beneficiary can apply to the court for an order directing the executor or administrator to file the accounts.

If the administration of the estate is complete, the accounts will include a proposed distribution. This distribution can be approved or, if a beneficiary objects to the proposed distribution, there can be a hearing on the matter. On the other hand, if all beneficiaries are willing to sign a release that they agree with the proposed distribution, the executor or administrator can ask the court to discharge them without passing the accounts. It is up to the individual beneficiaries to decide whether they will sign a release and agree to the proposed distribution. Beneficiaries can ask the executor or administrator for more information or for changes before agreeing to sign. If a beneficiary is not satisfied, they can refuse to sign. The accounts must then be passed and ultimately the court can decide how the estate should be distributed.