Using a Citation to Make an Executor Pass Accounts in British Columbia

If an executor is stalling, a person with an interest in the estate may apply to the court to remove or pass over a person entitled to act as personal representative.

The exact steps for a citation are set by the court rules and forms, which change, so confirm the current requirements with a lawyer. This article explains the related rules about accounts, removal and replacing an executor in British Columbia, which often decide whether pressing an executor works.

This article covers the law of British Columbia.

What an executor owes beneficiaries in accounting

The government guide to wills and estates lists as executor duties preparing accounts showing assets, receipts, disbursements and distribution of the estate, and getting the court's approval of the accounts.

Under the Trustee Act, executors, administrators and trustees under a will must obtain an order for passing their first accounts within two years of the grant or appointment, unless the exceptions in section 99 apply. Those exceptions are detailed, so check whether one applies to your estate.

Pressing an executor to account

• A beneficiary can serve notice requiring the representative to pass accounts annually, within one month of the anniversary.
• A trustee who fails to pass accounts as required may be called before the court to explain why.
• A beneficiary who suspects assets were left out can point to the duty of a grant applicant to make a diligent search and inquiry to find the property and liabilities of the deceased.

If a beneficiary has served notice requiring accounts and the executor does not pass them within one month of the anniversary, the executor may be called before the court to explain why. Ask a lawyer whether a citation or another court application suits your situation.

When the executor will not act at all

Sometimes the problem is not the accounts but that nothing is happening. A person with an interest in an estate may apply to the court to remove or pass over a person entitled to act as personal representative. To pass over means granting probate or administration to someone with lower priority than the person passed over.

Subject to the will, the court may remove or pass over a person it considers should not act. The listed grounds include refusing to act without renouncing, incapacity, a conviction for dishonesty, an undischarged bankruptcy, and being unable or unwilling to perform duties in a way that hampers administration of the estate. Creditor applications relying on the dishonesty-conviction and bankruptcy grounds are limited to claims above a prescribed amount.

What happens if an executor ignores the process

When the court removes or discharges a personal representative, it must appoint a substitute who consents to act, unless administration is complete or a new appointment is unnecessary. The former representative's grant is revoked and the substitute takes over their authority and duties.

Removal as personal representative does not by itself remove the person as trustee of any trust under the will, which needs separate relief. An executor who has not yet acted can renounce, which is different from being discharged.

For estate claims the executor will not pursue, a beneficiary can sue on the estate's behalf with leave of the court. Leave depends on reasonable efforts to get the representative to act, notice to the required parties, good faith, and the proceeding being necessary or expedient to protect the estate.

What to do next

• Write to the executor and ask for an accounting, keeping a copy.
• Record the date of the grant and the dates of your requests.
• If you are a beneficiary, consider whether to serve notice requiring annual accounts.
• Gather any information about assets that may be missing.
• Speak with a lawyer about whether a citation, an accounts application or a removal application fits your facts, and about any deadlines.

Frequently asked questions