How To Remove An Executor Named In A Will?

An executor is responsible for administering an estate according to the will’s terms. When an executor mismanages the estate, acts dishonestly, or fails to perform their duties, beneficiaries or other interested parties can apply to court to have them removed. Understanding the grounds for removal and the legal process protects estate assets and ensures proper administration.

An executor, also called an estate trustee in Ontario, is the person named in a will to administer the deceased’s estate. Their duties include applying for probate, identifying and securing estate assets, paying debts and taxes, distributing assets to beneficiaries, and accounting for all transactions.

Executors owe fiduciary duties to beneficiaries, meaning they must act honestly, in good faith, and in the estate’s best interests: not their own.

Courts will only remove executors for serious reasons. Minor disagreements or personality conflicts aren’t enough.

Valid grounds include:

Breach of fiduciary duty such as stealing estate assets, self-dealing or conflicts of interest, making decisions for personal benefit, or failing to act in beneficiaries’ best interests.

Mismanagement, including failing to secure or preserve assets, making poor investment decisions, losing estate property through neglect, or failing to pay debts and taxes properly.

Refusal or inability to act when the executor won’t take steps to administer the estate, is incapacitated or too ill to perform duties, has moved away and can’t manage the estate, or simply abandons their responsibilities.

Hostility or conflict such as ongoing disputes with beneficiaries preventing administration, refusing to communicate or provide information, or creating an adversarial relationship that makes administration impossible.

Dishonesty or fraud involving falsifying accounts, concealing assets, providing misleading information to beneficiaries or court, or lying about estate administration.

Lack of capacity when the executor doesn’t understand their duties, lacks mental capacity to make decisions, or is under undue influence from others.

Beneficiaries named in the will have the strongest standing to apply for removal since they’re directly affected by the executor’s conduct.

Other interested parties including creditors owed money by the estate, people who would inherit if the will is invalid, or those with potential claims against the estate may also apply.

Co-executors can apply to remove another co-executor who isn’t performing properly.

You must have a genuine interest in the estate’s proper administration, not just general complaints.

Judges have broad discretion when deciding removal applications. They balance several factors.

Seriousness of the misconduct or problem is assessed: minor issues won’t justify removal, but serious breaches will.

Impact on beneficiaries and estate: courts consider whether the executor’s conduct is harming the estate or beneficiaries, whether delay is causing losses, and if continuing with this executor risks further problems.

The deceased’s intentions matter: courts respect that the testator chose this executor and won’t remove them lightly.

Courts must be convinced removal is necessary for proper estate administration, not just preferred by beneficiaries.

When removing an executor, courts typically appoint a replacement.

Options include:

• Alternate executor named in the will
• Beneficiary willing and able to serve
• Independent third party like a trust company
• Public Guardian and Trustee if no suitable alternative exists

The replacement must be capable of properly administering the estate and acceptable to the court.

Once removed, the executor must immediately cease acting, deliver all estate property and documents to the replacement executor, provide accounting of their administration, and potentially repay estate funds if they misappropriated assets.

The replacement executor continues administration from where it was left, addressing any problems the previous executor created.

Need to remove an executor? Pinto Shekib LLP handles estate litigation. Contact us at 416.901.9984 or info@pintoshekib.ca.