How to Remove an Executor of an Estate in British Columbia

If you are a beneficiary and you have lost confidence in the executor, you may wonder whether anything can be done. In British Columbia, the Wills, Estates and Succession Act (WESA) gives the court power to replace a personal representative in some situations.

Removal is a serious step and the court decides on the facts. This article explains the grounds, the voluntary options and what happens after a removal.

This article covers the law of British Columbia.

Who can apply, and what the court can do

A person having an interest in an estate may apply to the court to remove or pass over a person entitled to act as personal representative. Subject to the will, the court may remove or pass over a person it considers should not act.

To pass over means granting probate or administration to someone with lower priority than the person passed over. Which remedy fits, if either, depends on your situation, so it is worth confirming with a lawyer.

Grounds the court may consider under WESA

• Refusing to act without renouncing.
• Incapacity.
• A conviction for dishonesty.
• An undischarged bankruptcy.
• Being unable or unwilling to perform duties in a way that hampers administration of the estate.

These grounds are examples the court may consider, and the court may remove or pass over anyone it considers should not act. Creditor applications relying on the dishonesty-conviction and bankruptcy grounds are limited to claims above a prescribed amount. Whether your concerns fit one of these grounds depends on your situation, so it is worth confirming with a lawyer.

When the executor wants to step aside

Sometimes the simplest route is a voluntary exit. The right path depends on whether the executor has acted yet.

What happens after removal

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

The court may require security from a substitute if the Supreme Court Civil Rules require it. Where special circumstances make it appropriate, the court may appoint any person it considers appropriate as administrator, with or without conditions and for general, special or limited purposes.

One trap: removal as personal representative does not by itself remove the person as trustee of any trust under the will. That needs separate relief.

Other options short of removal

Removal is not the only tool. Depending on the problem, other steps may fit better, and a lawyer can help you weigh them.

• 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 of the Trustee Act apply.
• The representative must pass accounts annually, within one month of the anniversary, if a beneficiary serves notice requiring it.
• A trustee who fails to pass accounts as required may be called before the court to explain why.
• The court may, on application, settle the amount of an executor's compensation, but this does not apply where the will itself sets the allowance.
• With leave of the court, a beneficiary can sue on the estate's behalf to recover property owed to the deceased, which is a route where a representative will not pursue estate claims.

If the executor lives outside British Columbia, a BC court can still have jurisdiction over an estate administration proceeding where the deceased had immovable property in BC, or movable property anywhere if the deceased was ordinarily resident in BC at death. A BC court may decline jurisdiction if a court of another province or country is a more appropriate forum.

Finding a substitute and next steps

If no suitable person is willing or able to administer, the Public Guardian and Trustee may step in. Anyone aware of an estate needing administration can refer it, online, by calling 604-660-4444 or by emailing estates@trustee.bc.ca. The Public Guardian and Trustee may decline an estate whose assets are not enough to pay funeral costs and its fees, usually wants consent from all or most known beneficiaries, and does not resolve family disputes over who should administer.

• Collect the will, the grant and any correspondence with the executor.
• Write down specific problems, with dates.
• Consider whether the problem could be fixed by asking for accounts or information first.
• Think about who could act in the executor's place.
• Speak with a lawyer before filing, because the court decides on the facts.

Frequently asked questions