Can Beneficiaries Replace an Executor in Alberta?

Sometimes the beneficiaries all agree the named executor is not the right person. They may be slow, unresponsive or in conflict with the family, and everyone wants someone else in charge.

Unanimous agreement among beneficiaries feels like it should be enough, but in Alberta it generally is not. This article explains the routes that do work, what the Court can do, and what to gather before you decide on a next step.

This article covers the law of Alberta.

Why agreement among beneficiaries is not enough

Once a grant has issued, only the personal representative named in it may act in that role. Beneficiaries cannot, by agreement among themselves, replace a grant-holding executor.

An executor named in a will has first priority to a grant. Without a will, the spouse or adult interdependent partner ranks first, then descendants, parents and siblings.

That does not leave beneficiaries without a voice. A personal representative must act honestly and in good faith, in line with the will and the testator's intentions, and with the care, diligence and skill of a person of ordinary prudence in comparable circumstances. The Surrogate Rules also list who counts as a person interested in an estate, including residuary beneficiaries, specific beneficiaries who have not received their entitlement, life tenants and heirs on intestacy.

Route one: the executor steps aside

If a person named as executor renounces, their authority under the will ceases. Their trusteeship authority also ends unless the renunciation expressly keeps it, and a later grant application is dealt with as if they had never been appointed.

So an executor who is willing to step aside before acting can do so by renouncing. After a grant has issued, a change needs the executor's renunciation or resignation as the court permits, or a court order.

Separately from an executor stepping aside, if the will names a substitute and the named representative dies before the testator or at the same time, the substitute is deemed to have authority to administer the estate as the will provides. Whether any of this fits your situation depends on the wording of the will and whether a grant has issued, so it is worth confirming with a lawyer.

Route two: the court

On application, if the Court of King's Bench is satisfied that a personal representative has refused or failed to give required notice or perform a duty or core task, it may order them to do so, impose conditions, remove them, revoke a grant or make another order. The core tasks include identifying the estate's assets and liabilities, administering and managing the estate, satisfying its debts and obligations, and distributing and accounting for the administration.

• Removal is one option, not the automatic result of a failure.
• The Court may issue a grant to the Public Trustee or another person in special circumstances.
• It may appoint a representative to act during litigation over the will or a grant.
• A co-executor can apply to remove another co-executor who is failing in their duties.

Alberta government guidance says that if you think a personal representative is not complying with their duties, you should first try to resolve it by discussion. If that fails, you or your lawyer may apply to the Court. The Public Trustee does not get involved in private disputes about how an estate is being administered, and people with concerns about a representative's conduct are directed to a lawyer.

Applications under the Estate Administration Act are heard by a judge, not an applications judge, and the Alberta Rules of Court and Surrogate Rules apply to the process. Court of King's Bench surrogate case conferences are available once a Form C1 or statement of claim has been filed, and removal of a personal representative is named as a matter that can be addressed in a half-day case conference, which requires all parties' consent.

If a grant is revoked, proceedings continue, and payments and conveyances made in good faith under the revoked grant remain valid.

Co-executors and other points

Where there are two or more personal representatives they must act unanimously unless the will directs otherwise or the Court orders otherwise. The Court can order that they need not act unanimously.

If you fear property is being dealt with improperly before a grant issues, anyone may apply to restrain dealing with the deceased's property. A caveat blocks grant proceedings and lasts 3 months unless the Court orders otherwise.

Slow progress is a common complaint, but it is not always a failure of duty. A personal representative must distribute the estate as soon as practicable, and the Act sets no fixed distribution deadline. Distribution is properly delayed until the steps for notifying claimants are done. A family maintenance and support application must be commenced within 6 months after the grant is issued, which is a reason a cautious executor may wait before final distributions.

Accounting is another tool. Unless the court orders a longer or shorter period, a personal representative must give an accounting every 2 years after the date of death, and a person interested in the estate may apply for an accounting at any time. A person interested can apply for a formal passing of accounts by filing Forms ACC 6 and ACC 7 and serving the personal representative.

Being both executor and beneficiary is not itself a statutory breach, but a conflict arises when the executor's own interest competes with their duty to act honestly, in good faith and in line with the will.

What to do next

• Find out whether a grant has already issued.
• Read the will for named substitutes or co-executors.
• Ask the executor whether they would be willing to step aside.
• Document specific duties not performed, with dates.
• Keep copies of messages and any accounting you have received.
• Get legal advice on whether to seek renunciation or apply to the Court.

Starting with a calm conversation is usually sensible, and it matches the government's suggested first step. If that fails, a lawyer can explain which application fits your facts.

Frequently asked questions