Can an Estate Trustee Be Removed in Ontario? Grounds and Process

You are a beneficiary, and the executor seems to be stalling. Perhaps nothing has been distributed, questions go unanswered, or you suspect money is being handled badly. You may be wondering whether the executor can simply be replaced.

In Ontario an executor is called an estate trustee, and the Superior Court of Justice has the power to remove one. This article explains who can ask, what the court can do, and the practical steps that usually come first. Whether removal is realistic depends on your facts, so a lawyer should look at your situation.

What the court can do

The Superior Court of Justice may remove a personal representative, which is the legal term that includes an estate trustee, on any ground on which the court may remove any other trustee. It can also appoint someone to take their place.

That wording is broad. What counts as a good reason depends on the evidence and the circumstances of the estate. A lawyer can tell you how courts have treated situations like yours.

If there are several estate trustees and only one is the problem, the court does not have to appoint a replacement when other estate trustees remain.

Who can apply

An application to remove can be brought by any person interested in the estate of the deceased. An executor or administrator who wants to be relieved of the role can also apply.

Whether you count as interested depends on your connection to the estate. If you are not sure, ask a lawyer before spending time on an application.

The second route matters too. An executor or administrator who no longer wants the job can ask the court to be relieved. If you are the trustee, take advice on what the court will expect before you apply.

What happens to the role afterward

Unless the court orders otherwise, a person appointed to replace a removed estate trustee must give the security that would be required of an administrator. Security is usually a bond, which works like insurance for the estate. Where bonds are needed, an estate over $100,000 needs two personal sureties and an estate of $100,000 or less needs one.

The bond is normally for double the estate's value unless a judge orders otherwise. A judge can also reduce a bond or dispense with it in special circumstances. These requirements are worth raising early, because they affect who is willing and able to step in.

Other tools to consider first

Removal is a serious step. Sometimes a less drastic tool gets you what you need. An executor generally need not account to the court, other than by inventory, unless a person interested in the property or a creditor requires it. If you require it, the estate trustee has to prepare accounts.

On a passing of accounts the judge may inquire fully into the estate's property and how it was administered and disbursed. The judge may also look into complaints of misconduct or neglect that caused loss and order payment to the estate. That can answer questions about mismanagement without removing anyone.

• Ask in writing for an update and for the information you need.
• Require accounts if the answers are not forthcoming.
• Consider whether the problem is delay, loss to the estate, or both, since the remedy may differ.
• Keep in mind that a claim may be subject to a two-year limitation period running from discovery of the claim.

Steps to take now

• Write down a timeline: what you asked for, when, and what the trustee said or did.
• Gather the will, any correspondence, and any account statements you have seen.
• Note when you first learned about any loss, since time limits can run from discovery.
• Ask a lawyer whether your concerns are likely to support removal or whether another step fits better.
• Think about who could serve as a replacement and whether they could provide security.

Court applications take time and involve cost, and who ultimately pays depends on the case. A short conversation with a lawyer before you file can help you weigh the options.

Frequently asked questions