How to Remove an Executor in Alberta: Court Application Steps

You may be a beneficiary who feels the executor is slow, secretive or careless. Or you may be a co-executor who is doing the work while someone else is not. Either way, you want to know whether the executor can be replaced and how.

In Alberta, removing an executor is a court process, not something the family can settle by vote. This article explains the grounds, who can apply, the evidence that tends to matter and the general shape of the application.

This article covers the law of Alberta.

What an executor must do

Under the Estate Administration Act, a personal representative is an executor, an administrator or a judicial trustee, and the Court is the Court of King's Bench. 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 in comparable circumstances.

The core tasks are to identify the estate's assets and liabilities, administer and manage the estate, satisfy its debts and obligations, and distribute and account for the administration of the estate. Distribution must happen as soon as practicable, and the Act sets no fixed deadline. A representative with professional skill, such as a trust company or a lawyer-executor, must apply that higher degree of skill when acting in that capacity.

The grounds the Court looks at

On application, if the Court is satisfied that a personal representative has refused or failed to give a required notice, or to perform a duty or core task, it may order the notice or duty to be performed, impose conditions, remove the representative, revoke a grant, or make any other order it considers appropriate.

Removal is an option, not an automatic result. The Court can choose a lesser remedy, such as an order to perform or conditions. The Court may, for example, impose security as a condition. Whether your situation justifies removal depends on the facts, so a lawyer can help you judge that.

• Not giving the required notices to beneficiaries and family members
• Failing to account for the administration of the estate
• Failing to act honestly, in good faith or with ordinary prudence
• Letting the executor's own interest compete with their duty to the estate

Who can apply

Government guidance says that if you think the personal representative is not complying with their duties, you or your lawyer may apply to the Court. Whether you are the right person to bring an application depends on your connection to the estate and the facts, so it is worth confirming with a lawyer. A co-executor can also apply under section 8 to remove another co-executor who is failing in their duties.

Where there are two or more personal representatives, they must act unanimously unless the will directs otherwise or the Court orders otherwise. The Court can order that they need not act unanimously, which may be a practical alternative to removal.

Once a grant has issued, only the representative named in it may act, and beneficiaries cannot replace that person by agreement among themselves. A change needs the executor's renunciation or resignation as the court permits, or a court order revoking the grant or removing the representative.

The process and what happens after removal

Alberta.ca guidance says that if you think the 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. Applications under the Act are heard by a judge, not an applications judge, and the Alberta Rules of Court and Surrogate Rules apply to the process.

Once a Form C1 or statement of claim has been filed in a surrogate matter, Court of King's Bench surrogate case conferences are available. 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.

If an executor is removed, the Court may issue a grant to the Public Trustee or another person in special circumstances, and may appoint a representative to act during litigation over the will or a grant. When a grant is revoked, proceedings continue, and payments and conveyances made in good faith under the revoked grant remain valid. The Public Trustee does not get involved in private disputes about how an estate is being administered.

What to do next

• Write down what the executor has and has not done, with dates.
• Collect the will, any grant, notices you received and correspondence.
• Raise your concerns in writing and ask for a response by a stated date.
• Ask whether other beneficiaries or a co-executor share your concerns.
• Speak to a lawyer about whether to apply and what remedy to ask for.

Frequently asked questions