Can One Co-Executor Remove Another in Alberta?

You were named as an executor alongside someone else, and now the other executor is stalling, refusing to sign or not doing the job. The estate cannot move forward, and you may wonder whether you can simply take over or remove them.

In Alberta, the answer is no, not on your own. The Court of King's Bench can act, though, and it has several tools beyond removal. This article explains how that works in general terms.

This article covers the law of Alberta.

Why you cannot remove a co-executor yourself

Where there are two or more personal representatives, they must act unanimously unless the will directs otherwise or the Court orders otherwise. That means one executor has no power to push another aside, and a refusal to sign can stall the estate.

Once a grant has issued, only the personal representative named in it may act in that role. Beneficiaries also cannot replace a grant-holding executor by agreeing among themselves. A change needs a renunciation or resignation as the court permits, or a court order revoking the grant or removing the representative.

Ways the other executor can step aside

If a person named as executor renounces, their authority under the will ends. Their authority as a trustee 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 has not yet acted can step aside by renouncing, while one who already holds a grant needs a renunciation or resignation as the court permits, or a court order.

Sometimes the will names a substitute. If 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. That rule is about death, not about an executor who is simply uncooperative.

Applying to the Court of King's Bench

A co-executor can apply under section 8 of the Estate Administration Act to remove another co-executor who is failing in their duties. The Court must be satisfied that the representative has refused or failed to give a required notice or to perform a duty or core task. Those core tasks include identifying assets and liabilities, managing the estate, paying debts and distributing and accounting for the administration.

If the Court is satisfied, it has a range of options:

• Order the representative to give the notice or perform the duty.
• Impose conditions, such as security.
• Remove the personal representative.
• Revoke the grant.
• Make any other order it considers appropriate.

Removal and revocation are options, not the automatic result of a failure. The Court can also order that the representatives need not act unanimously, which may solve a deadlock without removing anyone. Applications are heard by a judge, not an applications judge.

Who runs the estate during a dispute, and what happens to past payments

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. Both are options when an executor is removed or the estate is in dispute.

When a grant is revoked, proceedings continue, and payments and conveyances made in good faith under the revoked grant remain valid. This protects people who dealt with the estate in good faith, though what it means for your situation depends on the facts.

Case conferences, discussion first, and asking for directions

The Court of King's Bench offers surrogate case conferences once a Form C1 or statement of claim has been filed in a surrogate matter. 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.

Government guidance is 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.

A personal representative may also apply to the Court for advice or direction on any question about managing or administering the estate, and acting on the direction is deemed to discharge their duty on that matter. That protection does not apply if the direction was obtained by fraud, wilful concealment or misrepresentation. If you and your co-executor disagree on a question, this can be a less hostile route than a removal application.

What to do next

• Read the will for any wording on whether executors must act together.
• Write down what has not been done and when you asked for it.
• Raise the problem in writing with your co-executor and propose a solution.
• Keep records of every estate step you take, so you can show you acted honestly and with care.
• Speak with a lawyer about whether to seek directions, a change to unanimity or removal.

A personal representative must act honestly and in good faith, and with the care, diligence and skill of a person of ordinary prudence, although one with professional skill, such as a trust company or lawyer-executor, must apply that higher degree of skill when acting in that capacity. A lawyer can tell you which option fits your estate, and how a will's wording or beneficiaries who are minors or represented adults may change the steps.

Frequently asked questions