Removing an Executor/Trustee in British Columbia
Why People Want to Remove an Executor
Executors of an estate are responsible for managing and distributing the assets of an estate in accordance with the deceased’s will. Their primary duties include preserving estate assets, paying debts, and distributing the balance to the beneficiaries pursuant to the will or in accordance with any order varying the will. If the executor fails to fulfill their duties, acts improperly (dishonest/fraudulent), endangers trust property, or becomes unable to serve, beneficiaries or interested parties may apply to remove them.
You cannot remove an executor just because you don’t like them or you wish it was someone else.
Reasonable grounds for removing an executor are negligence or intentional misconduct that harms the estate, conflict of interest, endangerment of estate property, lack of capacity or ability to execute duties, or undue delay in performing executor duties. A common ground for removing an executor is when there is a clear conflict of interest. This is when the executor’s personal interest conflicts with the interests of the beneficiaries for whose benefit the executor has a duty to act.
Another common ground for removal is where the executor is not progressing at an appropriate rate and is therefore causing an erosion of the value of the estate. For instance, the executor may not be listing real estate in a timely manner without excuse and this results in the value of the property declining and the estate must continue to pay the maintenance, taxes and upkeep on the property.
How Can you Remove an Executor?
If you are trying to remove an executor who doesn’t agree with being removed, a court application must be made.
Sections 158 and 159 of the Wills, Estates and Succession Act gives the court the power to remove and replace an executor of an estate when there is evidence the executor has acted in a way that endangers the estate or, has acted dishonestly, without proper care, or without reasonable fidelity.
The main focus of the Court is the welfare of the collective beneficiaries.
However, courts are typically reluctant to remove an executor unless there are compelling reasons. The court views executor removal as a last resort option. Arguments or tension that may arise between executors and beneficiaries are not grounds to remove an executor. The executor is not required to be friendly with beneficiaries, they simply have to administer the estate in a timely manner with the best interests of the beneficiaries in mind. Co-executors should be mindful that if they cannot work together to carry out their duties, the welfare of the beneficiaries may be harmed and the court may intervene to remove one or more of them.
It must be noted that even when there are grounds to remove an executor, another alternative may be more appropriate. In many cases, it is difficult to find an alternative independent executor as most of the beneficiaries have a stake in the outcome. Alternatives to removing an executor include taking remedial steps, restricting the executor’s powers to administer the estate, imposing some form of oversight, or ordering costs against the executor.
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© Albert & Co. Law LLP. The contents of this article do not constitute legal advice. Readers should seek legal advice in relation to their own specific circumstances.