Can a BC Court Remove an Executor Who Lives Outside BC?

Sometimes the person named as executor lives in another province or abroad, and they have stopped replying. Beneficiaries are left waiting, and it is natural to ask whether a BC court can do anything about someone who lives far away.

This article explains the general rules on a BC court's reach, how removal works, and what practical steps you can take. Your situation may involve other places' laws, so a lawyer should confirm the details.

This article covers the law of British Columbia.

Does a BC court have power over an out-of-province executor?

A BC court has territorial competence over a person if the person submits to the court, the parties agree, the person is ordinarily resident in BC when the proceeding starts, or there is a real and substantial connection between BC and the facts.

For estates, the law helps you. A real and substantial connection is presumed in a proceeding about administering a deceased person's estate where the deceased had immovable property in BC, or had movable property anywhere and was ordinarily resident in BC at death. An executor living outside BC can therefore be subject to BC court jurisdiction.

If the claim is against a trustee about carrying out a trust, the same presumption applies where the trust includes BC property (for relief about that property), the trustee is ordinarily resident in BC, administration is principally carried on in BC, or the trust document is governed by BC law.

The court may still decline

Having jurisdiction does not guarantee the BC court will hear the matter. It may decline if a court of another state, which includes other provinces and foreign countries, is a more appropriate forum.

In deciding, the court considers convenience and expense, the applicable law, avoiding multiple proceedings and conflicting decisions, and enforcing a judgment. Enforcement is worth thinking about early, since an order is only useful if it can be put into effect.

How removal works

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. Passing over means granting probate or administration to someone with lower priority.

Subject to the will, the court may remove or pass over a person it considers should not act. 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. An executor who is simply unresponsive and stalling the estate may fall into that last ground, but that depends on the facts.

• When the court removes a 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
• The court may require security from a substitute if the Supreme Court Civil Rules require it
• Removal as personal representative does not by itself remove the person as trustee of a trust under the will, which needs separate relief

Other routes if the executor will not act

An executor can ask the court to be discharged. An executor who has not yet acted can renounce, which is different from discharge. If the executor is willing to step aside, one of these may be faster than a contested removal.

Where special circumstances make it appropriate, the court may appoint any person it considers appropriate as administrator, on conditions or not, and for general, special or limited purposes.

The Public Guardian and Trustee may administer an estate where it is named executor or where no suitable person is willing or able to administer, and anyone aware of such an estate can refer it. It may decline an estate whose assets are not enough to pay funeral costs and its fees, it usually requires consent from all or most known beneficiaries or heirs, and it does not resolve family disputes over who should administer.

Practical next steps

• Confirm where the deceased lived and where their property is, since this affects jurisdiction
• Keep a dated record of every attempt to contact the executor
• Find out whether the executor would agree to step aside, discharge or renounce
• Check whether any other court or country's rules could be involved
• Think about enforcement, such as where the executor's assets are
• Speak with a lawyer about whether to apply for removal and how to serve someone outside BC

If another claim may be tied to the estate, such as a wills variation claim, its deadlines can run separately. That proceeding must be started within 180 days of the grant being issued in British Columbia.

Frequently asked questions