Under section 38 of the Trustee Act, a claim against a deceased person’s estate for a wrong they committed generally must be brought within two years of their date of death, and this limitation period is not extended by discoverability. You sue the estate trustee or executor, not the deceased personally, and you will need solid documentary evidence since the person who could have explained their side is no longer available.
- A claim against a deceased person’s estate generally must be brought within two years of the date of death under section 38 of the Trustee Act.
- This two-year clock runs from death itself, not from when you discovered or should have discovered the claim — the ordinary discoverability rule does not extend it.
- You name the estate trustee or executor as the defendant, suing in their capacity as representative of the estate, not suing the deceased personally.
- If no one has yet been appointed to administer the estate, this can complicate — though not necessarily block — bringing or serving your claim.
- Strong, contemporaneous documentation matters more than usual, because the one person who could dispute your version of events is no longer available to testify.
- Recovery depends on what is actually left in the estate after debts, taxes, and funeral costs — a judgment against an estate with no remaining assets may be difficult to collect.
The Two-Year Limitation Period
Section 38 of Ontario’s Trustee Act allows a claim to be brought against the estate of a deceased person for a wrong they committed — including, for example, an unpaid debt or breach of contract — but only within two years of the date of death. Miss that window, and the claim is generally barred, regardless of how clear-cut it otherwise is.
Estates need to be wound up and distributed within a reasonable time. A short, fixed limitation period protects beneficiaries and executors from the estate remaining open indefinitely while old claims surface.
Why Discoverability Doesn’t Help You Here
Under the general Limitations Act, 2002, a limitation period usually does not start running until you knew, or reasonably should have known, about your claim. Section 38’s two-year period works differently: it generally runs from the date of death itself, without that discoverability extension. If you did not learn about the debt, or about the person’s death, until well after it happened, that may not help you if two years have already passed.
Because of this, if you are owed money by someone and you learn they have died, treat the two-year clock as already running and act promptly rather than assuming you have time to sort things out first.
Who You Actually Sue
You cannot sue a deceased person directly. Instead, you name the estate trustee (sometimes called the executor or administrator) as the defendant, suing them in their representative capacity on behalf of the estate. Any judgment is enforced against the estate’s assets, not against the trustee’s own personal property.
What If No One Has Been Appointed?
Sometimes a family delays applying to formally administer an estate, or disputes who should take on the role. If no estate trustee has yet been appointed when you need to sue, this can complicate bringing or serving your claim properly. A lawyer can advise on the available steps, which may include applying to the court to have someone appointed so your claim can proceed within the limitation period.
Proving a Claim Against Someone Who Can’t Respond
A contractor is owed $8,000 for work completed shortly before the client passed away unexpectedly. With invoices, a signed estimate, and email confirmation of the completed work, the contractor has a strong documentary record to present to the estate trustee and, if necessary, to the court — even though the client who could have confirmed the arrangement is no longer available.
Courts understand that a claim against an estate is inherently one-sided — the deceased cannot testify or contradict your account. That makes solid documentary evidence (written agreements, invoices, texts, emails, bank records) more important than in an ordinary dispute between two living parties.
Collecting From an Estate
Even a successful judgment is only as good as what remains in the estate. Debts, taxes, funeral costs, and other estate expenses are generally paid before claims like yours, and before any distribution to beneficiaries. If the estate is insolvent or has already been distributed, practical recovery may be limited — another reason to act quickly once you learn of the death.
Owed money by someone who has passed away in Toronto or anywhere in Ontario? Our lawyers offer a free 30-minute consultation to help you act within the limitation period. Call us at 416-274-2222 or contact us online.
Frequently Asked Questions
Generally two years from the date of death, under section 38 of the Trustee Act, for a claim arising from a wrong committed by the deceased person.
It generally runs from the date of death, not from when you discovered the claim. The usual discoverability extension under the Limitations Act, 2002 does not apply to extend this specific limitation period.
The estate trustee or executor, sued in their capacity as the representative of the estate — not the deceased person individually, since they can no longer be sued directly.
This can complicate matters, since someone needs to be appointed or otherwise available to represent the estate for your claim to proceed properly. A lawyer can advise on the available options, including applying to have someone appointed.
You will need to rely on documentary evidence — invoices, written agreements, texts, emails, or bank records — since the deceased cannot testify or dispute your account. Gather and organize this evidence as early as possible.
This is significantly more difficult once assets have left the estate, which is another reason to act within the limitation period and promptly after you learn of the death.
Yes. Claims within the $50,000 limit can proceed in Small Claims Court; larger claims against an estate would need to go to Superior Court.