Area of Law: Wills, Estates and Powers of Attorney
Answer # 1175
Removing an executor / estate trusteeRegion: Ontario Answer # 1175
When making a Will, an individual has testamentary freedom, meaning they are free to both dispose of their assets in any way they wish, and, to choose whomever they want to be in charge of their estate. This person named in a Will to fulfill the terms of the Will is known as the estate trustee or executor.
Your estate trustee or executor is responsible for performing a number of duties to ensure that your property goes to the people chosen by the deceased, and that their personal affairs are wrapped up in an orderly manner following death. Although these duties may vary depending on the particular situation, the estate trustee generally:
- assists with funeral arrangements,
- deals with the deceased’s bank accounts,
- makes a list of all the estate assets and debts,
- cancels the deceased’s credit cards,
- files the final income tax returns,
- distributes property to the beneficiaries, and
- maintains complete records of all transactions performed in the administration of the estate.
When can an estate trustee be removed?
Even though someone was appointed by the deceased to be the estate trustee (executor), there may be reason to remove or replace him or her. In order for an estate trustee to be removed or replaced by the Court, there must be evidence that the trustee is not fulfilling their duties or acting in the best interest of the estate. In most cases, estate trustees have been removed for misconduct, such as not acting in the best interests of the estate.
Examples of reasons for removal include:
Breach of trust and fiduciary duty: The trustee-trust relationship creates a fiduciary duty by the trustee (or executor) to the beneficiary or trust. Fiduciaries owe a duty of care to the trust or beneficiaries, and must always act in good faith and with integrity, and make decisions that are in the best interest of the beneficiaries or trust.
Not providing a proper accounting: An estate trustee has a duty to keep proper accounts, including valuating the estate, paying the debts, and distributing the assets of the estate properly. They also have a duty to disclose this information to the beneficiaries.
Conflict of interest: If an estate trustee cannot act impartially because they are personally benefitting from the trust, the Court will have reason to remove them.
Inability to act impartially: An estate trustee, while fulfilling his/her duties must act impartially and objectively.
Other reasons for removal
The Court may remove the estate trustee for a number of other reasons, including if the trustee:
- has gone bankrupt,
- has been convicted of a crime,
- shows an inability or unwillingness to carry out the terms of the trust,
- has become incapacitated either through age or illness,
- mismanaged estate assets,
- took compensation before allowed,
- is unable to agree with, or is hostile with a co-trustee, or
- showed improper behaviour or misconduct, or acted in a manner that endangered the estate.
Who can apply to remove an estate trustee?
In Ontario, under the Trustee Act, anyone with a financial interest in an estate can apply to the Court to have an estate trustee removed, replaced or not appointed at all. Dissatisfied or frustrated beneficiaries often go to court for the removal of the executors and to force them to pass their accounts (which means they will have to show the court all of the accounts and documents relating to the administration of the estate).
How does a court decide?
In making its decision, the Court will not lightly interfere with the deceased’s choice of estate trustee. In addition, the Court’s main consideration must be the welfare of the beneficiaries. The Court will make a decision to remove or replace an estate trustee if it is proved to be necessary that the estate trustee be removed; and/or if the estate trustee’s acts or omissions are endangering the administration of the estate.
For more information about Wills, visit the Ontario Ministry of the Attorney General website. Wills are extremely important documents and relatively inexpensive to have prepared professionally. If you want to make sure your Will is legal and clearly expresses your wishes, or for help applying for the removal of an estate trustee, you should consult a lawyer.
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