Removing an Executor in BC

Beneficiaries often reach out when an estate has stalled. The executor has not applied for probate, will not answer emails, is living in the house rent-free, or seems to be treating the estate as their own. Others worry about an executor who has a conflict of interest or has become unwell.

In BC, an executor cannot simply be voted out by the family. Removal or replacement needs a court order, and the court will look for a real problem with how the estate is being run, not just friction between relatives.

Removing versus passing over

The Wills, Estates and Succession Act (WESA) uses two terms. To remove a personal representative means taking the office away from someone who already holds it, usually an executor who has a grant of probate. To pass over means granting probate or administration to someone with lower priority instead of the person otherwise entitled. Section 158(1) defines passing over this way.

Passing over is used before a grant is issued, for example when the named executor has not applied and the estate cannot move. Removal usually applies once the executor has been appointed by the court.

Who can apply

Under section 158(2), a person having an interest in the estate may apply to the court. That usually means a beneficiary under the will, or an heir on an intestacy. Section 158(3.1) adds a limit for creditors: they can rely on the dishonesty-conviction or bankruptcy grounds only if their claim is over a prescribed amount.

The grounds the court looks at

Section 158(3) lets the court remove or pass over an executor if it considers that the person should not continue in office or be granted probate. The section lists examples, without limiting the court's power. They include an executor who:

• Will not act and will not renounce. The person refuses to take on the role but also has not formally stepped aside.
• Cannot manage their own affairs. This includes a person who has lost capacity.
• Has tried to resign. An executor cannot simply walk away part-way through.
• Has a conviction for an offence involving dishonesty, or is an undischarged bankrupt.
• Is unable or unwilling to do the job. The person cannot make the needed decisions, is not responsive, or otherwise unreasonably refuses to carry out the duties, to an extent that hampers the efficient administration of the estate.

The last ground is the one most beneficiaries rely on. Note the qualifier: the conduct must actually hamper the administration. Slow progress, a difficult personality or family history may not be enough on their own. Evidence matters, such as unanswered written requests, missed steps, unexplained delays, or dealings with estate assets that favour the executor.

Section 158(3) is also subject to the terms of the will. If the will says something about replacing an executor, that has to be considered too.

Executor and trustee: why both roles matter

Many wills appoint the same person as executor and trustee. Section 158(4) says an order removing a personal representative does not remove that person as a trustee. If the person is also holding estate assets in trust, for example for minor children or for a beneficiary over time, the application usually needs to deal with trusteeship as well.

The Trustee Act gives the court power to appoint a new trustee where it is expedient and hard to do without the court (section 31). Section 30 also allows a court-appointed trustee to be removed on application by a beneficiary, with the consent of a majority in interest and number of the beneficiaries. Under WESA section 159(1)(b), when the court removes an executor who has also been removed as trustee, it may appoint the substitute as trustee at the same time.

What happens after an order

If the court removes an executor, section 159 says it must appoint a substitute who consents to act, unless the administration is complete or the court does not consider a new appointment necessary. The substitute takes on the same authority and duties, and the former grant of probate is revoked on the substitute's appointment.

The estate vests in the new personal representative without a separate transfer (section 160). Under section 161, the former executor must hand over the estate property and the estate records within 30 days of the order making the substitution, and must sign documents reasonably needed for the new representative to carry on.

Steps to consider before applying

Court applications cost time and money, and those costs can come out of the estate or be ordered against a party. Before applying, it is often worth:

• Writing to the executor. Ask specific questions, set reasonable dates, and keep copies. Our guide to executor duties in BC sets out what an executor is expected to do.
• Asking for information in writing. Request details of the assets, debts and steps taken so far. An unexplained refusal or silence can itself become evidence.
• Using a citation where probate has not started. Rule 25-11 of the Supreme Court Civil Rules lets a person interested in the estate serve a citation requiring a named executor to apply for probate.
• Suggesting a voluntary step back. An executor who is overwhelmed may agree to renounce, if no grant has issued, or to step aside by consent, which can be faster and cheaper than a contested hearing.

For a wider view of how estate conflicts are handled, see our overview of estate disputes in BC.

Is an executor holding up the estate? Talk to us about your options

Our probate and estate lawyers can review the will, the estate's progress and the executor's conduct, explain whether a removal or passing-over application is likely to be worth bringing, and prepare and argue the application, including the request for a substitute executor and trustee.

Call 604-259-2844 or send us a message to arrange a consultation at our Vancouver office.