Can Beneficiaries Replace an Executor Without Going to Court in Alberta?

Sometimes every beneficiary agrees the named executor is the wrong person, whether because of conflict, delay or distrust. It is tempting to think a signed agreement among everyone could simply name someone else.

In Alberta the answer depends on whether a grant has issued and whether the executor is willing to step aside. This article walks through the options.

This article covers the law of Alberta.

Why beneficiaries cannot simply agree

Only the personal representative named in an issued grant may act in that role once the grant has issued. Beneficiaries cannot, by agreement among themselves, replace a grant-holding executor. A change needs the executor's renunciation or resignation, as the court permits, or a court order revoking the grant or removing the representative.

When the executor is willing to step 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.

Consent to step aside therefore works by renunciation before acting, or by court order after a grant. Where 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.

If there is no grant yet, priority matters. Where there is a will, the named representative ranks first, followed by others in the order listed. Without a will, the spouse or adult interdependent partner ranks first, then descendants, parents and siblings.

When a court application is unavoidable

If the executor has a grant and will not step aside, the route is an application to the Court. The Court may order the representative to perform a duty, impose conditions, remove them, or revoke a grant if it is satisfied they refused or failed to perform a duty or core task. Removal is only one option, and the Court can choose a lesser remedy.

• A co-executor can apply to remove another co-executor who is failing in their duties.
• Where there are two or more personal representatives, they must act unanimously unless the will directs otherwise or the Court orders otherwise.
• The Court may issue a grant to the Public Trustee or another person in special circumstances, and may appoint a representative to act during litigation over the will or a grant.

Other tools short of removal

Sometimes the real problem is information, not identity. A person interested in the estate can apply for an accounting at any time. The Court may also impose conditions on a representative, such as security.

Alberta's guidance suggests first trying to resolve concerns by discussion. 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 can be addressed in a half-day case conference, which requires all parties' consent.

What to do next

• Find out whether a grant has issued, because that decides which route applies.
• Ask the executor, politely and in writing, whether they are willing to renounce or resign.
• Check the will for a named substitute or for directions about co-executors.
• Keep a record of the problems that led to the request.
• Speak with a lawyer before applying to the Court, since the Public Trustee does not get involved in private disputes about administration.

Frequently asked questions