Removing an Estate Trustee in Ontario: Grounds and Court Process

When an estate stalls, or you suspect the estate trustee is mishandling it, it is natural to ask whether they can be replaced. Ontario courts can remove a trustee, but it is not the only tool, and it is not always the best first step.

This article explains the court's power, the steps that often come before removal, and what to prepare if you are considering an application.

What the court can do

Under the Trustee Act, the Superior Court of Justice may remove a personal representative on any ground that would justify removing another trustee. It may also appoint new or replacement trustees. What counts as enough depends on the facts of your case, and a lawyer can assess how a court is likely to view them.

Ordinary frustration, such as slow progress or poor communication, is different from conduct that puts the estate at risk. Keeping that distinction in mind helps you decide which step fits.

Steps short of removal

• Ask for information. A person interested in the estate or a creditor can require an accounting, and an interested person may move for an order that the estate trustee pass accounts.
• Seek directions. Any person with a financial interest may apply for directions (Form 75.5) or move for directions (Form 75.6), including where co-trustees are deadlocked.
• File a request for notice (Form 74P). A person with a financial interest may do so at any time before a certificate is issued. It expires three years after filing and can be renewed.
• If the named executor has not decided whether to act, anyone with a financial interest may move for an order requiring them to accept or refuse the appointment.

A passing of accounts can bring problems to light. The judge may fully inquire into the deceased's whole property and its administration, hear complaints of misconduct, neglect or default that caused loss, and order payment to the estate.

Where a child is a beneficiary, the Office of the Children's Lawyer may follow up on how the estate trustee manages the child's interest and request accounts. If the court grants that request, the estate trustee must bring an application to pass accounts.

What a court application involves

Removal is decided by the Superior Court of Justice. The exact steps for a removal application, including what evidence to file and who must be told, depend on the facts, so a lawyer can confirm them for your situation. For a passing of accounts, the application is served at least 60 days before the hearing, or 75 days if served outside Ontario. Timing for other applications depends on the type of proceeding and the court's rules, which a lawyer can confirm.

Some court fees are fixed. An estate trustee's application to pass accounts is $432, and a notice of objection to accounts is $93. Fees can change, so check the current schedule.

A trustee is entitled to a fair and reasonable allowance for their care, pains, trouble and time, as allowed by a judge. If you are unhappy with compensation, a judge may fix it on a passing of accounts if it was not already fixed.

Who might replace the trustee?

The court has power to appoint new or replacement trustees. If an administrator is needed, the court may grant administration to the spouse or common-law partner, the next of kin, or both, as it thinks best. A person named in a will does not have to act, and if they decline the beneficiaries may nominate someone else. Who is suitable, and whether someone is willing, are matters to raise with a lawyer.

A named executor who renounces probate loses all rights as executor, and the estate then passes as though that person had never been named. A renunciation is made on Form 74G (Part A).

A replacement who is granted administration must generally give a bond to the judge of the court making the grant. The bond is generally for double the sworn value of the estate, although the judge may reduce it or dispense with it. Letters of administration cannot be granted to a person who does not live in Ontario, except when a grant is resealed under s. 52 of the Estates Act.

What to do next

• Write down what has happened, with dates, and keep emails and letters.
• Ask the estate trustee in writing for an update and the information you need.
• Obtain a copy of the will and the certificate, if one has issued.
• Consider whether a request for notice, an accounting or directions fits your situation.
• Speak with a lawyer about whether removal is realistic, before starting a court application.

Frequently asked questions