Can an Executor Be Removed by the Probate Court in New Brunswick?

When an executor is slow, silent or careless, waiting can feel like the only choice. In fact the Probate Court has several ways to push an estate forward, and removal is only one of them.

This article explains the tools a beneficiary or other interested person may use in New Brunswick, what each one does, and what to expect. Your own situation may call for a different route, so treat this as a map rather than advice.

This article covers the law of New Brunswick.

What the Probate Court can do

The Probate Court of New Brunswick can grant letters probate, recall or revoke them, and supervise how an estate is administered and distributed. It is separate from the Court of King's Bench, but a King's Bench judge presides over it.

The executor holds the deceased's real and personal property as personal representative, whatever the will says. That power comes with duties, which is why the Court can look closely at how it has been used.

Steps short of removal

In many cases the practical goal is information and action, not a new executor. These tools may get you there:

• Ask the Court for an order that an executor, administrator or trustee deliver a sworn, detailed inventory of assets and values.
• Apply for a citation requiring the executor to pass accounts, which include a full inventory and statements of money received, disbursed and remaining.
• If the named executor has not brought in the will, an interested person may seek a citation requiring the executor to accept or refuse probate.
• Ask the Court to order a person holding a will to deposit it.

An executor need only provide an inventory unless an interested person or creditor requests an account. So a written request is often the first practical step.

Grounds and removal options

When accounts are passed, the Court may make a full inquiry into the whole property of the deceased. Where misconduct or neglect caused loss, the Court may order the personal representative to pay damages.

On revoking letters, an interested person may apply for a citation requiring the holder to bring the letters into the probate office, and once it issues the holder must not start or continue distributing without leave of the Court. If security becomes inadequate and is not furnished, the Court may revoke a grant of letters of administration.

The Trustees Act applies to personal representatives only for compensation and accounts, and where a will creates a trust. Where it applies, a court may remove a trustee in listed circumstances, including where removal is in the beneficiaries' best interests and other routes are impracticable. A trustee must show the care of a person of ordinary prudence. Which route fits your estate depends on its facts, so a lawyer can confirm it.

What happens after you apply

Notice goes to each interested person when accounts are passed, and interested persons living in the province get at least seven days' notice. Accounts the Court approves bind the people who were notified unless mistake or fraud is shown.

Time limits can apply to claims. The basic limitation period is the earlier of two years from discovery and fifteen years from the act or omission. Do not wait to get advice.

What to do next

• Write to the executor asking for an inventory and an update, and keep copies.
• Collect the will, any letters probate and your correspondence.
• Note dates when you learned of any problem.
• Ask a lawyer which Probate Court application suits your situation.
• Consider whether you also need advice on a trust created by the will.

Frequently asked questions