The world of probate and estate administration can be a daunting one. Being named the executor of an estate means taking on significant responsibilities as well as inviting exposure to personal legal and financial liability. But what if someone is named an executor only to find out that they aren’t comfortable with the responsibilities or the possible liability they may be exposing themselves to?
In Ontario, the ability for courts to remove someone from the position of executor is found in Section 37 of the Trustee Act. The act states,
“The Superior Court of Justice may remove a personal representative upon any ground upon which the court may remove any other trustee, and may appoint some other proper person or persons to act in the place of the executor or administrator so removed.”
A recent decision from the Queen’s Bench for Saskatchewan looks at some of the ways a court may consider whether an executor should be removed at their request.
Estate has liabilities
The deceased passed away on November 12, 2016. His sister, “SF”, was appointed to be the executrix of his estate. She applied for letters probate the following autumn, on October 4, 2017, and the letters probate were granted two weeks later. The estate’s only asset was a piece of land valued at just $800. However, the estate also had liabilities, including a claim from the deceased’s former lawyer, “JG”, in the amount of $23,747.95.
The court was faced with two requests in light of this. The first was a request from SF to renounce probate. The second included a request by JG to ask SF for legal fees related to claims he is owed money by the estate.
Can the executrix renounce her role?
Following her receiving letters of probate, SF renounced herself as executrix of the estate. However, the court stated that renouncing the role is not something that can be done unilaterally. Instead, the court quoted a practice note which states, “…those asking for the removal of the trustee must convince the Court that his continuance in office would be likely to prevent the trust being properly executed.”
SF stated that transferring the property owned by the estate would cost money that the estate did not have, and would therefore impose a financial burden on herself. She said she could not afford to obtain the valuation of the land required to transfer the property. The court described her implicit argument as being that her continuance in the office could prevent the trust from being properly executed.
The deceased left behind two young children who were set to inherit the land. However, due to liabilities owed by the deceased as well as taxes owed against the property, the transfer of the property was a complicated matter.
The court told SF that she cannot unilaterally remove herself as executrix. Instead, she was directed to serve notice requesting to do so on the public trustee in view of the minor beneficiaries. She must also include an affidavit stating why she was seeking to remove herself from the role.
Can a creditor request an order directing the executrix to file her accounts and transfer land?
The second issue the court addressed was whether JG, who claimed he was owed more than $20,000 by the deceased could request an order directing SF to file the estate’s accounts and to transfers the state.
In this case, the court noted that those actions would be premature due to the uncertain nature of how the estate would be administered. If he wants to file a claim directly against SF, he would have to file an action rather than bringing up the matter while the issue at hand was being dealt with.
If you have been appointed an executor, the estates lawyers at Derfel Estate Law can advise and guide you on all aspects of estate administration, including determining whether or not probate is required, or assisting you if it is. Call us at 1-844-2-DERFEL or contact us online to schedule a consultation.