An Executor/Administrator/Trustee (“Personal Representative”), must be ready at all times to account for the trust property. The Personal Representative has a stringent duty to keep detailed records of all capital, expense and income transactions with documents, invoices and receipts.
A “Passing of Accounts” is usually the final piece of the Estate process. It is the formal Court process to have the accounting of the Personal Representative approved by a Judge. The passing of accounts can be done formally through the Courts, or informally by the consent of all the beneficiaries. That being said, in those cases where there is a minor or incapable beneficiary, the passing of accounts cannot be waived and must go before the Court.
More often than not, the majority of accounts are approved and consented to in writing by the adult/capable beneficiaries. However, where beneficiaries are at odds, a formal Court passing of accounts is usually inevitable. If a Personal Representative anticipates controversy, it is usually recommended that they voluntarily submit their accounts to audit before the Court, by making an application for the formal passing of their accounts. If the accounts are approved by the Court, the Personal Representative is then absolved of any liability with respect to the accounts (unless there has been a fraud). A formal Court passing is also useful as it allows the Personal Representative to take his/her compensation if the beneficiaries are refusing to consent to same.
The function of the Court on a passing of accounts was well set out in the case of Estate of Fannie Cleverley 2000 BCSC 1454, “…the function of the court is to determine whether the executor has exercised his duties under the will properly and in accordance with the law.”
This is provided as information ONLY; it should NOT be construed as legal advice. You should consult with a lawyer to provide you with specific advice for your own situation. For more information on estate planning/incapacity planning and to discuss your specific circumstances, please contact Vanessa DeDominicis on 250-869-1140 or [email protected]. Vanessa practices in the area of Wills and Estates at Pushor Mitchell LLP in Kelowna and would be more than happy to assist you.
