How to Remove an Executor or Estate Trustee in Ontario

You are a beneficiary and the estate seems stuck. Nobody answers your calls, there is no word on when assets will be distributed, or you suspect money is being handled badly. Removing the person in charge is possible, but it is a court decision and not something you can do yourself.

This article explains the legal tools that exist, why courts are careful, and what to try before and alongside a removal request.

Who can be removed, and by whom

Under the Trustee Act, the Superior Court of Justice may remove a personal representative (an executor or administrator) on any ground on which it may remove any other trustee. It may also appoint another proper person in their place.

The statute does not list every ground, so what counts depends on the facts. A lawyer can tell you whether your concerns, such as delay, poor record keeping or conflict, are the kind a court is likely to take seriously.

Why courts are cautious

The Court of Appeal for Ontario has said that removing estate trustees whom the deceased specifically chose is a serious matter, because it intrudes on the deceased's intention. Whether a particular concern is enough depends on the facts, so the evidence you can put forward matters, and it is worth confirming with a lawyer how your situation fits.

Different routes depending on timing

Rule 75.04 also allows revocation if the appointment is no longer effective, or for any other reason.

Notices of objection: time limits to watch

A notice of objection expires three years after it is filed. The objector may withdraw it, or the court may order it removed. The applicant serves a notice to objector (Form 75.3). If the objector does not serve a notice of appearance (Form 75.4) within 20 days after that service, the application goes ahead as if no objection had been filed.

That 20-day window is short, so get advice quickly if you receive a notice to objector.

Look at what the trustee should already be doing

Some duties have clear dates. An estate representative must file an Estate Information Return within 180 calendar days after the estate certificate is issued. This applies even if the estate is worth $0, and it includes estates with a Small Estate Certificate.

Failing to file the return, or making a false or misleading statement in it, is an offence under the Estate Administration Tax Act, 1998, although there is a due-diligence exception for the false or misleading statement offence. A representative who distributes assets without a CRA clearance certificate while tax is owing is personally liable for the unpaid amounts, up to the value of the assets distributed.

A trustee is also entitled to a fair and reasonable allowance for care, pains, trouble and time, as allowed by a judge, who may fix it when the accounts are passed. There are exceptions. The Trustee Act rule does not apply where the document creating the trust fixes the allowance. Where a trustee who is a lawyer provides necessary professional services to the estate, the allowance may be increased accordingly.

Taking compensation early is allowed only if all interested persons agree (if they are sui juris), the court approves, or the will allows it. Unexplained payments to the trustee are a reasonable thing to question.

If the court is asked to pass the accounts, the trustee must file the verified estate accounts (Form 74.43), a copy of the certificate of appointment and a copy of the latest judgment, if any. Reviewing those accounts can show you whether your concerns are well founded before you ask for removal.

What to do next

• Write down what you have seen: dates of requests, replies, and any unexplained payments or delays.
• Request information from the trustee in writing and keep copies.
• Find out whether a certificate has been issued, which affects whether an objection or a revocation application is the right tool.
• Check any deadlines in documents you receive, especially the 20-day notice of appearance period.
• Talk to a lawyer before filing, since a failed removal attempt can be costly and strain the family.

Frequently asked questions