Can an Executor Be Removed in Saskatchewan? Grounds and Process

You are a beneficiary, and you do not trust how the executor is handling things. Perhaps there is little information, or the estate seems stalled. You may be wondering whether the Court of King's Bench can step in and replace them.

This article covers the tools Saskatchewan beneficiaries generally have, what happens when an executor stops acting, and what to gather before you speak to a lawyer. The specific grounds and procedure for removal depend on the circumstances and should be confirmed with a lawyer.

This article covers the law of Saskatchewan.

Removal is a serious step

Letters Probate are the grant used where the will names an executor. Before going further, it helps to separate an estate that is slow or poorly communicated from one where there is a real problem with how the executor is acting. Whether your concerns would support a removal application depends on the facts, and a lawyer can assess that for you.

Steps short of removal

Many concerns can be addressed without asking the court to remove anyone. The province lists accounting to beneficiaries within two years among an executor's duties. If the accounts are disputed, the executor must pass them at the court house.

• Ask the executor in writing for a clear update on assets, debts and timing.
• Ask for an accounting of money received and paid out.
• If the accounts are disputed, ask that they be passed at the court house.
• Where debts exceed funds, the court can be asked for directions.

A slow estate is not always a stalled one. The Court of King's Bench says the average estate takes about a year. Distribution may be delayed six months after Letters are obtained where a dependant may claim under The Dependants' Relief Act, 1996 or a spouse may apply for division of family property, and final distribution cannot occur until the CRA clearance certificate is received.

Tax is one reason an executor may hold back. If a legal representative distributes assets before getting a CRA clearance certificate and tax is still owing, they can be held personally liable up to the value of the assets distributed.

If your concern is that the will itself is not valid, that is a different process. Saskatchewan courts allow a will to be proven in solemn form (Rule 16-48) and a caveat to be filed. Capacity is presumed where a will is duly executed, while suspicious circumstances shift the burden to the person putting the will forward; undue influence and fraud must be shown by those attacking the will.

When an executor cannot or will not act

Sometimes the problem is that the named executor does not want the job. A named executor can give up the right by signing a Renunciation of Probate (Form 16-16). Where a will exists but no executor is named, or the executor cannot or will not act, the grant is Letters of Administration with Will Annexed.

In that case the application is made on Form 16-11B, and priority is set by section 10 of The Administration of Estates Act, starting with executors, then residuary beneficiaries, down to the official administrator.

What a court application involves

If you are considering court action, the records you have kept will matter, so it helps to gather them early. The detailed grounds, forms and timelines are not something this article can confirm, so a lawyer should tell you how it would work in your case. Costs and the risk of an unsuccessful application are also worth discussing before you start.

It can help to know what the province lists as an executor's common duties, such as finding the will, securing and valuing assets, publishing a Notice to Creditors, depositing money in an estate account, filing returns and obtaining a CRA Final Clearance Certificate, and paying debts by priority. Comparing that list with what you have actually seen can show where the gaps may be.

Other time limits can run alongside an estate. For example, a surviving spouse's family property application may not be started more than six months after the grant of probate or administration. If you are a dependant, a claim may be possible under The Dependants' Relief Act, 1996 where the will makes inadequate provision.

What to do next

• Write down specific concerns with dates, not general impressions.
• Collect letters, emails and any accountings you have received.
• Ask in writing for information and keep the replies.
• Find out whether a grant has been issued and when, since some deadlines run from that date.
• Speak to a lawyer before filing anything with the court.

Frequently asked questions