KPA Lawyers - July 2, 2021
You must evaluate your reasoning if you disagree with an estate executor in Ontario. A valid disagreement could lead to the executor’s removal. However, personal disputes do not qualify for legal intervention and should be solved through communication instead.In this blog post, KPA Lawyers addresses what to expect from an executor, how to handle a dispute, and where to get legal help. Let’s start by examining the responsibilities and expectations of estate executors:
What Are the Duties of an Executor in Canada?
- Executors are responsible to all the beneficiaries of a family Will. Their primary objective is to make decisions in the beneficiary’s best interests. Further, they must also close out the estate as efficiently and effectively as possible. In general, estate executors are responsible for the following duties:
- Assist with burial or funeral arrangements
- Cancel credit cards and financial accounts
- Distributes the property to the beneficiaries
- File final tax returns
- Handle the decedent’s bank accounts
- List all estate assets and debts
- Maintains records of all administration-related activities
The role of executor is regarded by many as an honour. However, the responsibilities involved are challenging and time-consuming. As a result, some executors choose to take shortcuts, affecting a family’s legal rights.
What Is an Estate Executor Prohibited From Doing?
The executor also faces limitations. Accordingly, they must always act in the estate’s best interests and cannot engage in activities that indicate otherwise. An explanation should accompany every decision as to why it is the most practical approach.
Canadian laws established this standard to prevent executors from acting selfishly or greedily during their appointment. Courts will also consider beneficiaries serving as executors when evaluating distributions and fiduciary decisions.
What Happens if There Is a Dispute with the Executor?
Beneficiaries might disagree with a Will and estate’s contents or the decisions made by executors. Further, they cannot challenge an executor over personal disagreements with one or more of their decisions in court. However, the court may remove an executor if someone proves misconduct or incompetency.
If this occurs, it will likely choose an alternate or successor executor if the Will names one. On the other hand, each court has a priority list of individuals it appoints as executors in the removal or dying intestate, or without a Will. Surviving spouses and adult children are often very high on the list.
When Can I Remove an Executor of a Will?
There may be valid reasons to remove or replace an executor despite the decedent’s appointment. However, for a court to remove or replace an estate executor, they must prove that they failed to fulfill the duties or requirements.
Courts will generally order executor removals for the following reasons:
Reason 1. Breach of Fiduciary Duty: Executors have a duty of fiduciary responsibility towards the estate and beneficiaries. Failing to handle money, assets, and debts properly can result in removal.
Reason 2. Conflicts of Interest: In a conflict of interest, courts can remove executors benefitting directly from the family Will. The inability to act impartially is also grounds for removal.
Reason 3. Improper Accounting: The executor of an estate must keep proper records, including valuing the estate, paying the debts, and distributing the estate’s assets. Furthermore, they are responsible for disclosing this information to the beneficiaries.
Additionally, the probate court may remove the executor if, among other things, the trustee:
- Becomes incapacitated
- Goes bankrupt
- Hostile towards co-executors
- Misappropriated compensation
- Mismanaged estate assets
- Receives a criminal convictio
- Refuses to carry out their responsibilities
Not every executor possesses the necessary skills and abilities to fulfill their duties, nor do they always act in the estate’s best interests. In such circumstances, friends or family members may seek to have the estate executor replaced or removed.
Removing an executor is a serious matter that takes resources. A lawyer can offer guidance and advice while helping you navigate the legal complexities if you seek this type of remedy.
Can Beneficiaries Overrule an Executor in Ontario?
In Ontario, beneficiaries cannot overrule an executor except when they fail to act responsibly or competently. Even though beneficiaries may disagree with an executor’s choices, there is usually nothing they can do about this fact unless a violation occurs. A beneficiary cannot override the decisions of a legally appointed executor over a personal disagreement.
If a beneficiary believes that the executor has failed to follow the terms of the Will, they have the legal right to request a new executor. As a general rule, the probate court will not remove an executor unless the beneficiary proves incompetence or misconduct beyond a reasonable doubt. Therefore, beneficiaries need to seek advice to honour their loved one’s final wishes and protect their legal rights if a breach occurs.
How Do I Get an Executor Removed?
An interested party may hire an estate lawyer to petition for a fiduciary’s removal if they believe the executor has committed illegal acts. Your legal team may also petition to demand that the Executor file a Formal Account for improper actions and estate damages. A lawyer can also seek discovery through this process, including eyewitnesses and expert testimony or depositions. During depositions, lawyers interview witnesses, subpoena evidence, and capture formal testimony that they can use later.
Interested Parties Have Rights Beneficiaries and other interested parties can petition the court for removal if they feel an initial executor has not fulfilled their duties, responsibilities or has committed a Breach of Fiduciary Duty and believes the successor executor should serve instead.
Request a Hearing
An interested person may request a hearing if the executor refuses to change his behaviour and make any needed adjustments. According to the court’s evidence and procedure rules, an estate planning lawyer will present the evidence for this hearing. The judge has the right to order an executor’s removal if a valid reason exists.
Court Procedures Are Serious
During discovery and evidence gathering before the hearing, you will submit the relevant evidence to the court. Depose, interview, and question the existing executor, beneficiaries, bankers, and physicians as part of this discovery process.
The judge must receive this evidence promptly. Lawyers with court system familiarity and its procedures are best suited to handle this matter.
Do I Need an Ontario Estate Lawyer to Remove an Estate Executor?
A court will hear your case if you want to remove an executor under unique circumstances. A well-organized and well-presented case is crucial, which means that hiring an Ontario estate planning lawyer becomes increasingly important. Not only will a lawyer ensure that your case does not miss vital deadlines, but we also complete and obtain witness statements, depositions, and subpoenas.
This process requires years of experience, like any other profession or trade. If you have a case involving these procedures, you will benefit from hiring a lawyer who understands them. Working with an experienced legal team also ensures that you avoid making legal mistakes that can jeopardize your inheritance.
Get Started With a Free Consultation
Contact KPA Lawyers for an Initial Consultation if you are considering the removal of an estate executor. We will help you learn more about your legal rights and options while honouring your loved one’s final wishes. You can find our booking form online to speak with us directly.