How Do You Remove Estate Executors?

Many times executors are unprepared to handle their estate duties. Mistakes and delays can happen that drive beneficiaries wild. But can a court remove a bad apple executor? When will a court remove executors and why is this not always the best solution?

I spend my day advising executors and estate beneficiaries. I see barely capable executors struggle with estate work. They are uncertain what to do. They are afraid to pay for advice. It seems they go around in circles and are lost. This can be frustrating for them and for the estate beneficiaries.

Usually, an economical and efficient handling of the estate is what the beneficiaries want. People will always disagree about how to quickly handle an estate.

When will a court intervene with a bad executor?

A recent Ontario decision reviewed the five factors a court will consider. I’ll review them briefly here and explain simpler solutions.

Five factors for a court to remove an executor or trustee:

1. When a person names an executor in the will, the court will not lightly interfere with that decision.

2. The person requesting the court’s help must clearly show the necessity for removal. This means you must satisfy the court that you have met all five factors for removal. Executors do not have the onus to prove they should stay on the job to finish.

3. Removal of the executor must be the only solution to the problem. Removal will cause the estate to incur costs and delay. The court must consider this offset.

4. Any removal must not harm any of the beneficiaries. You may need the support of a majority or all beneficiaries.

5. If the court fails to remove the executor, this will prevent the proper administration and closing of the estate.

This is a daunting list.

It costs tens of thousands of dollars for this type of case.

You can imagine that a court removal of an executor will happen in only clear cut cases. These cases would include executor theft, gross negligence, bankruptcy or total disregard of their legal duties and the beneficiary’s needs.

Executors will likely fight against being removed

There are various reasons for this, and they usually involve money.

If the executor is removed, he or she can be liable for legal costs. These costs can include their own lawyers and also the beneficiary’s.

The executor may also be liable to pay thrown away costs. These costs include producing interim accounting records to the date of the court removal.

Usually, a court audit of the executor’s financial records and dealings with the estate assets will follow. This is a search for more possible executor misconduct.

Are you a borderline competent executor?

Check out executorschool.com. Learn from the lawyer who wrote the book on executor self-defence, Executor Kung Fu.

Edward Olkovich (BA, LLB, TEP, and C.S.) is a nationally recognized author and estate expert. He is a Toronto estate lawyer and Certified Specialist in Estates and Trusts. Edward has practiced law since 1978 and is the author of seven books. Visit his website, mrwills.com, for more free valuable information.

2013 © MrWills.com. This information is not financial, legal, tax advice or a substitute for professional advice. Always consult with a professional before taking any action.