How to Remove an Executor From an Estate in Alberta

Watching an executor mishandle an estate is stressful, especially when you depend on the inheritance or are a co-executor who cannot get the other person to act. Many people assume they can just vote the executor out. In Alberta, it does not work that way.

This article explains who the executor is under Alberta law, what failures can lead to removal, how the Court of King's Bench approaches the question, and what to gather before you speak to a lawyer.

This article covers the law of Alberta.

What the law calls an executor and who can ask for removal

The Estate Administration Act uses the term personal representative, which means an executor, an administrator or a judicial trustee of a deceased person's estate. The Court is the Court of King's Bench.

A person interested in the estate can bring concerns to the Court. Under the Surrogate Rules, that group includes residuary beneficiaries, specific beneficiaries who have not yet received their gift, life tenants and heirs on an intestacy. A co-executor can also apply to remove another co-executor who is failing in their duties.

What can justify removal

A personal representative must act honestly and in good faith, in line with the will and the testator's intentions, and with the care, diligence and skill of a person of ordinary prudence. A representative with professional skill, such as a trust company or lawyer-executor, must apply that higher degree of skill when acting in that capacity.

The Act also sets out core tasks: identifying the estate's assets and liabilities, managing the estate, paying its debts and obligations, and distributing and accounting for the administration. The Court can act if it is satisfied that the representative has refused or failed to give a required notice or to perform a duty or core task.

• Not giving the required notices to beneficiaries and family.
• Not providing an accounting when one is required.
• Leaving the estate unmanaged or undistributed without explanation.
• Putting their own interest ahead of their duty to act honestly and in good faith. Being both executor and beneficiary is not itself a breach, but a conflict can arise when their interest competes with that duty.

Removal is not the only outcome

On an application, the Court may order the representative to give the notice or perform the duty, impose conditions, remove the representative, revoke a grant, or make any other order it considers appropriate. Removal and revocation are options, not the automatic result of a failure.

Conditions can include security. If a grant is revoked, the proceedings continue, and payments and conveyances made in good faith under the revoked grant remain valid. If someone new is needed, the Court can issue a grant to the Public Trustee or another person in special circumstances.

Why you cannot replace an executor by agreement

Once a grant has issued, only the personal representative named in it may act in that role. Beneficiaries cannot replace a grant-holding executor by agreeing among themselves.

There are other ways a change can happen. If a person named as executor renounces, their authority under the will ceases, and a later grant application is dealt with as if they had never been appointed. After a grant, a change needs a resignation as the Court permits, or a court order removing the representative or revoking the grant. Where there are two or more representatives, they must act unanimously unless the will or the Court says otherwise, and the Court can order that they need not.

How the court process generally works

Alberta's guidance says you should first try to resolve concerns 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 administered.

These applications are heard by a judge, not an applications judge, and the Alberta Rules of Court and Surrogate Rules apply to the process. 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. If minors or represented adults are beneficiaries, the Public Trustee or their representative may have to be involved, so the process can differ.

What to do next

• Write down what the executor has and has not done, with dates.
• Keep emails, letters and any notices you received or should have received.
• Ask for the missing information or action in writing and note the reply.
• Check whether a grant has issued, and who is named in it.
• Speak with a lawyer about whether to apply, and which remedy to ask for.

Frequently asked questions