Applying to Court to Compel a Personal Representative to Act in Alberta

If an executor or administrator has stopped acting, you may be considering a court application. It helps to know what the Court can order and what to expect before you start.

This article gives a general overview. Your facts, the forms and the timing should be confirmed with a lawyer.

This article covers the law of Alberta.

When the Court can step in

A personal representative is an executor, an administrator or a judicial trustee of the estate of a deceased person, and the Court means the Court of King's Bench. Under the Surrogate Rules the term also includes a person named as executor in a will before a grant issues.

On application, if the Court is satisfied that a personal representative has refused or failed to provide the required notice under Part 2 or to perform a duty or core task, it can act. Core tasks include identifying assets and liabilities, managing the estate, paying debts, and distributing and accounting.

The standard of conduct is honesty, good faith, and the care, diligence and skill of a person of ordinary prudence. A representative with professional skill, such as a trust company or lawyer-executor, must apply that higher degree of skill when acting in that professional capacity.

An executor named in the will is also a trustee of any property the will does not dispose of, so trust-law duties of loyalty apply. Being an executor and a beneficiary at the same time is not itself a breach, but a conflict can arise when the executor's own interest competes with the duty to act honestly, in good faith and in line with the will.

Distribution is required as soon as practicable, and the Act sets no fixed deadline. Delay can be proper, for example while claimant-notice steps are done, while a contested claim is open, or because a family maintenance application can be brought within 6 months after the grant.

What you can ask for

• An order to provide notice or perform a duty.
• Conditions on the representative, such as security.
• Removal of the representative or revocation of a grant.
• Any other order the Court considers appropriate.

Removal is not automatic, and the Court may choose a lesser remedy. A person interested in the estate may apply for an accounting at any time. To seek a formal passing of accounts, a person interested files Forms ACC 6 and ACC 7 and serves the personal representative.

Where there are two or more personal representatives, they must act unanimously unless the will directs otherwise or the Court orders otherwise. A co-executor can apply to remove another co-executor who is failing in their duties, and the Court can order that representatives need not act unanimously. Beneficiaries cannot replace a grant-holding executor by agreeing among themselves; a change needs the executor's renunciation or resignation as the court permits, or a court order.

Process and who must be served

Applications under the Act are heard by a judge, not an applications judge, and the Alberta Rules of Court and Surrogate Rules apply. Before filing, Alberta guidance says to try resolving the matter by discussion; if that fails, you or your lawyer may apply.

Who must be served depends on the application and should be confirmed with a lawyer. For accounting applications, you serve the personal representative, who may reply in Form ACC 8 at least 10 days before the hearing. Where minors or represented adults are beneficiaries, the Public Trustee or the representative of that person is involved.

The Surrogate Rules generally require an accounting every 2 years after the date of death unless the court orders a different period, and a person interested can apply for an accounting at any time. A representative who applies to pass accounts formally files Forms ACC 1 and ACC 2 and serves interested persons who have not given releases, with notice of the hearing at least one month before the hearing. Instead, a representative can apply for an order dispensing with a formal passing by filing Forms ACC 10 and ACC 11.

Surrogate case conferences are available once a Form C1 or statement of claim is filed. Removal of a personal representative can be addressed in a half-day case conference, which needs all parties' consent.

Outcomes and related points

If a grant is revoked, proceedings continue and good-faith payments under it remain valid. The Court may issue a grant to the Public Trustee or another person in special circumstances, and it may appoint a representative to act during litigation over the will or a grant.

A representative who is unsure can apply to the Court for advice or direction, and acting on it is deemed to discharge their duty on that matter, except where it was obtained by fraud, wilful concealment or misrepresentation. The Public Trustee does not get involved in private disputes about administration.

A bond or other security is required before a grant issues unless the Rules or another enactment provide otherwise. A lawyer's charges to the estate are reviewed under the Alberta Rules of Court.

What to do next

• Write to the representative setting out what is outstanding and by when.
• Keep copies of all letters, emails and notices.
• List the specific duties or notices not performed.
• Identify who else is interested in the estate.
• Ask a lawyer to confirm the forms, service and timing before filing.

Frequently asked questions