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Monday, March 26, 2012

Will the judge remove the executor if I apply to the court?

The majority of the questions I received this week were from beneficiaries who are fed up with the executors in charge of estates in which they are involved. They said the executors are terrible and the beneficiaries want to go to court to have the executors removed. I can see their point. An awful lot of executors really are doing a terrible job, and some will no doubt be removed. I'd like to take a few minutes to take a closer look at this idea of a beneficiary applying to the court to remove an executor.

It's an uphill job. Nobody should think that getting an executor tossed out of an estate is quick or easy. First of all, there are two sides to every story (actually there are probably more like ten) and the court process for dealing with testimony can be lengthy. Assuming that the executor objects to being booted out of the job, there may be affidavits filed, counter-affidavits filed, examinations on affidavit (in-person cross examination of what you said in your affidavit) held, undertakings given. This could take months.

The real obstacle to removing an executor is the fact that he or she was chosen by the deceased. If a judge removes the executor, the judge is in effect re-writing part of the will. They don't take that lightly; in fact judges will make every effort to uphold the terms of the will as much as possible.

If you apply to the court to ask that the executor be removed, the judge has more options than simply saying yes or no to that request. In fact, the lawyer that helps you bring your application to court should know this, and suggest some of those less drastic options that might work for you as a back-up in case the judge does say no. The judge may try to get things back on track with the current executor.

For example, if the problem you're having with the executor is that she simply will not give any information and you believe that money has gone missing, the judge might order a passing of accounts. As another example, if your complaint is that the executor is simply dragging his heels and isn't doing anything at all, to the detriment of the estate, the judge might impose a deadline for taking certain steps. Depending on the issue, the judge could order the sale of a house, direct mediation between certain parties or set executor's compensation.

Keep in mind that if you're proposing that an executor be removed, you'd best have a replacement in mind. The best option would be an alternate named in the will, if there is one. The judge may not think that having an estate with no executor is good for the estate, and having nobody in charge definitely isn't going to resolve your concerns.

This is not to say that it's impossible to remove a rogue executor. It certainly does happen. It probably needs to happen more often than it does. Sometimes in the really egregious cases the executor ends up in jail either for theft from the estate or for contempt of the judge's orders. In other, less dramatic, cases the executor isn't jailed but is released from his or her duties, perhaps with costs assessed against him or her by the court.

I look at this as a positive thing. Yes, I'm a born optimist, I know that, but look at it this way. Maybe the only thing you can think of to fix a broken estate is to remove the executor. Seeing an experienced lawyer and getting in front of a judge brings you face to face two very knowledgeable people who can help you with that estate. They will suggest solutions that you might never have thought of.

26 comments:

  1. As beneficiaries we are experiencing odious accounting by an Executrix. A mere figure of monies was placed on a piece of paper as of the date our Father passed away. We refused to sign a Release Form and asked for additional information. We received a copy of a Realtors Feature Sheet that had nothing to do with our Fathers purchase or sale of his house and a list of assets that had been given away. The executrix had taken several different Powers of Attorneys; our Father did not want her acting alone on his behalf, he didn't trust her. She went to the doctors and a lawyer friend and had the paper work completed without respect for our Father or discussion with the family. While acting as Agent/Trustee or whatever, for our Father, she had the Land Title changed into her and her husbands names, however, forgot to inform anyone that she had made this move. Of course she was there for the signing of his Last Will and that document disappeared until his death. There is no way our Father would have understood that compound complex writing, being alone with the Agent? and her husband would have been overwhelming and he would have signed it out of duress. We suspect this was accomplished with the help of her real estate lawyer friend. This calous approach is a dishonor to our late Father; a man that was highly respected and loved by all! Dementia is a disease and those whom suffer from it need assistance in making their decisions; it should not be an opportunity to pilfer. Those whom take Powers of Attorneys and Executor positions have a fiduciary duty; why are there no checks and balances in place to protect people suffering from dementia or ageism? Our Father fell the day before his death, there were three of the Executrors family members with Personal Directives and neither of them had the time to check on our Father after EMS put him back into his bed. There must be legislation put in place to govern those who take on duties and do not carry through on the responsibilities. We are in disbelief to find the confusion surrounding how Alberta freely hands out Directives/Agents, etc., however, has nothing in place to protect those whom need assistance.

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  2. LYNNE IF YOU ARENT A NARCISSISTIC LAWYER LIKE MOST.. DO SOMETHING ADMIRABLE WITH YOU LIFE AND RESPOND TO THIS WITH ACTIONS FOR A PUSH OF NEW LEGISLATURE

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    1. Hmm. Interesting comment. The only way to get a new "legislature" is to vote in new representatives. I suspect, however, that what you mean is "new legislation". Since you don't provide any specifics, this could be legislation on anything from garbage pick-up to capital punishment. Bit of a wide net, it seems to me.

      I find it surprising that you would insult me and ask for help all in one sentence. Pretty arrogant of you, and even if your question made any sense, I wouldn't be interested in helping out anyone who started out by insulting me and everyone else in my profession. I've been a lawyer for almost 30 years, and in my experience, the people who slam all lawyers the way you have done either a) have never actually hired a lawyer and are just going on stuff their friends have said with no empirical evidence, or b) have f*cked up their own lives so badly they've had to hire lawyers to salvage whatever they can, and are mad that they've had to spend money on that.

      Lynne

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  3. Hi Lynn,

    If I would like an Ontario judge to set executor compensation, could I make this type of application directly or can this type of request occur only after failure to gain removal of executor? I am unsure if it is only a possible recourse if removal is denied?

    I would prefer to have my late mother's estate possibly resolved in this manner. The executor is requesting full compensation (2.5% in, 2.5 out, 2/5 of 1% yearly) which equates to over 10% of the estate. This is the case even though even though he pretook compensation, retained executor lawyer to complete executor duties (besides probate etc), retained accountant for all accounting (estate not complicated), and lost over 10% of investable liquid assets in a single penny stock.

    He also did not create an inventory list of her possessions. When she passed the executor intrusted her valued possessions to lover. He was trusted and as the executor lived in another province this was suitable.

    I believe I will never see these items. The executor has been managing the estate for over a decade. He told me about the estate roughly 2 years ago and I have been eligible to receive funds for roughly 13 months. CRA clearance certificate issued.

    He is dragging his feet. No interim distribution. Limited correspondence. I ask about the belongings, no response. Eventually he will provide release/documents and request full compensation. This is unfair.

    His responses are limited if they are even provided to begin with. If I inform him that all the CRA penalties & interest will be deducted from compensation & accounting fees he most likely wont care. He will stand behind his position of no funds can be transferred unless you sign release. I have seen Brighter vs Brighter, not to sure the strength of this case precedent.

    I have requested interim distribution with release/documents as receiving funds while I review release will show good faith. I am a dreamer..

    This is ridiculous.

    John

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    Replies
    1. Hi John,
      Yes, the passing of accounts application can be done on its own, with no relation to an application to remove the executor. In fact, most are done without an application to remove the executor.

      Lynne

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    2. Hi Lynne,

      I truly appreciate your prompt response. It has provided some clarity. But I am still unsure.

      Your post suggests If I lose executor removal application I can request the judge to outline compensation during the proceeding. Your reply suggests this is not the case and to have a judge set the compensation I must request passing of accounts. Is this correct?

      I am trying to determine all the avenues to have a judge set compensation.

      I will only seek passing of accounts if the executor and I can not come to a compromise. His documentation is fine, I can see all the numbers but its compensation I have a problem with.

      If he still wants full compensation I will have accounts passed as the majority of his compensation will go to an accountant to prepare the documents for passing. I rather have the funds go to an accountant and have everything outlined than the executor having all his compensation for such a mediocre job done.

      Thanks for clarifying the avenues to have a judge determine compensation. Hopefully its not only through passing of accounts but if that is, it is.

      John


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  4. Hi Lynne,

    I did some more research and I will stick with passing of accounts if there is no compromise. Removal of executor seems like a last resort. It also seems to be expensive and time consuming.
    Thanks for the earlier guidance.

    John

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    Replies
    1. Removing an executor is definitely a last resort. Not to mention, it's pretty hard to convince a judge that you know better than the deceased who should be looking after the deceased's estate.

      Lynne

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  5. Ten years later, one co-owner with possession is victim to executor/co-owner without possession. can we file for removal of the executor over their half, or at least send letter to Judge to allow us to inventory our half? The executor has disposed of almost all co-owned assets, and refuses to place the property on the market to close the estate. Can we request in a letter to the Judge to remove the executor and or allow us access to our own House for inventory of the assets left. TEN YEARS LATER NOTHING HAS MOVED FORWARD FOR THE 1993 POSSESION OWNER.

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    Replies
    1. Yes, it's time for something to happen. Ten years is just too long. A letter to the judge is not the way to go, but you have the right idea. You will likely have to start a lawsuit to get any action on this. The good news is that most law suits settle before they actually get to trial, so you will get resolution one way or another. Find a lawyer who is experienced in wills and estates.

      Lynne

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  6. Hi Lynne
    My father passed away in Jan 2012 and left my mother as executor and me next in line. My mother passed away in Oct 2013 and did nothing as executor of my fathers will and on her will she first made me executor then one month later changed it to me and my two brothers. I know two brothers pressured her to make them executors. I am no trying to remove the two brothers. Both brothers are doing avoidance with estate lawyer and one brother has been caught be police for using my deceased mothers debit card numerous times for thousands of dollars taken from estate account. He still lives in estate home and will not leave and will not let me in house to do any estate work. The other brother lives in another estate home and had up to 3 months to get out after mothers death and he has not made a move after 5 months. They are both trying to get estate to pay for hydro and fuel for both houses. What do you think my chances are of getting a judge to remove the both of them and leave me as being the sole executor. thank you

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    1. Hi. I think your chances of having them removed are decent. I think that you'd get more traction on the basis that they are depleting the estate and neglecting their duties than you would by relying on them pressuring your mother to change her will.

      There is a principle in estate law called "devastivit" which refers to an executor who depletes the estate for no good reason. This would apply to both of them, from what you've said.

      There is also the fact that your mom has been gone for over a year and they are stonewalling you. I hope you have some kind of paper trail or other backup, as that would make your case easier.

      The one who has been busted for using your mother's debit card should be removed, period. He deserves no second chance and cannot be trusted. You haven't said whether there have been criminal charges laid against him. Whether or not he is removed as executor, you should ask the judge to order him to move out and to impose a deadline for that.

      I suspect that a judge would be a bit more reluctant to remove the other brother as executor without trying some other remedies first. If you took this matter to court, you might find that the judge is willing to impose some deadlines and rules on the other brother. Those might include a deadline to move out of the house, or to sign the probate application.

      I always caution people to think over this kind of application before going ahead, but I have to say that yours seems like an extreme situation. You're getting to the point that if you don't take steps soon to protect the estate from your brothers, you will be seen as being as much to blame as they are.

      Best of luck.

      Lynne

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    2. Thank you for your input Lynne. Here is an update on this situation. It has now been 2 years since my mothers passing. The one brother continues to live in the estate home and has gotten his own lawyer who keeps making excuses about him living in the home, even though we have a court order that says he is to be out of the house. My two brothers got the house listed for a high price and are using the 2 out of 3 rule against me so I have no voice in the matter. There has been a fair market offer on the house and the two brothers refuse to accept it. My lawyer is taking them to court to get them removed at the end of Oct for not taking the fair offer on the house. Hopefully the judge can see all of the estate wastage the two brothers are doing and that my mother did have me as the lone executor and one month later she was bullied by the two brothers to also put them on as executors and have the judge side with me. I will let you know how it turns out. thank you

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  7. Hi Lynne, my husband's grandfather passed away 7 years ago leaving my sister in law as the executor. As of yet we have yet to see any money my husband was supposed to get. All assets except for his house were supposed to 50/50 between my husband and his sister. I do know for sure there were 2 life insurance policies, oil stocks and savings bonds. She evaded our questions for the first few years and then moved to the Dominican Republic. At this point we have no contact with her. her own son has told us that she recieved money from various things to do with the estate and went on shopping sprees buying among other things 2 new vehicles. I don't know what to do. The only thing left is the house that my husband is entitled to 1/3 of the proceeds when it is sold. I just need some advice as to what are options are.

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  8. My father passed away May 2012. I am one of his 6 children. He remarried in 2006 and did not rewrite his will. He had a pre-nup and we have since been able to settle financially with his wife. Having died without a legal will, we have appointed my oldest sister and brother as estate trustees. My father was a farmer and a small business owner. Most of his assets were sold in auction in order to pay off his debt. However there are still 2 loans that my father had jointly opened with my brother. (brother only told us about one of them) We would like to sell the farm so that we can pay the remainder of the debt, but now my brother is stalling. He does not communicate with the other executor. If she calls or emails, he does not respond. He is angry with us as he said we sold the business out from under him. (even though he signed the auction agreement) He has personally cashed the crop share cheques for the last 2 years along with the tractor rental cheques. (over $24,000) He has assumed the hydroOne land rental agreement from the Estate and is refusing to share any details of the contract saying he paid the bill and he is now entitled to 25% of the crop share. (hydroOne would not allow the lease agreement to be put into the Estate name) We are at a stand still and now we risk the bank selling the farm to pay the loans. Do you think we have a case to remove him as an executor?

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  9. I was a very close friend and POA (for care) of the deceased who passed away Nov. 1/13. There are four beneficiaries including myself. The Estate consist of "Cash Only" no assets to be disposed of. The lawyer is also the executor and is dragging his feet in finalizing the Estate. He does not communicate with us. On calling his office today I was told by his assistant he is not obligated to keep us up to date on the progress he is making on the estate. I would appreciate your help or assistance in explaining the right procedure in handling an estate. Thank you.

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    1. Well, so far I've written 7 books on the right procedures for handling an estate, so I'm going to have to narrow down your question. :)

      It's been 16 months since your friend passed away, so there is nothing at all unreasonable about a beneficiary making inquiries about the estate. In fact, you should expect it to wrap up any time now.

      You said that you're one of 4 beneficiaries, and I'm taking that to mean that the 4 of you are residuary beneficiaries, that is, the four of you are getting the estate equally between you. If you are a residuary beneficiary, you are entitled to an accounting of the estate.

      Contrary to what that very unhelpful and misinformed assistant has told you, an executor does in fact have to keep residuary beneficiaries up to date.

      I don't necessarily agree that the lawyer is dragging his feet. The timeline you've described is consistent with wrapping up an estate and waiting for the Tax Clearance Certificate to arrive. The certificate takes MONTHS to arrive. However, if he doesn't tell you anything, then of course you are going to wonder.

      Since phone calls have proved ineffective, I suggest that you make a request in writing to the lawyer for an accounting. Ask for a full, detailed account of all estate assets and debts. The usual way of doing this is to allow a couple of weeks (but no more than 30 days) for the lawyer to provide it to you. If you are in touch with the other beneficiaries, you could ask them if they want to join you in your request.

      The lawyer will either come up with an accounting that will describe how he has dealt with the estate, or at the very least will call you to tell you verbally. You may feel that what he tells you verbally answers your questions adequately.

      Lynne

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  10. what can you recommend be done, if some passes away and the executor was also the caregiver and was taking money out of their account for personal use. they also have got the deceased to change power of attorney and executors to themselves so that they could have full control of the will? At this point we have no clear idea as to how much money has gone missing before death and what other abuse has been done. sorry Lynne but I have to use anonymous so that the parties involved don't completely empty all the bank accounts before the reading of the will. (yes they have access the the bank accounts by making themselves joint account holders with the deceased)

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  11. Hi lynn,
    I need some advise , make a long story short.
    this feud has went on for 10 years now and the property taxes haven't been paid for years. So the executor paid the back taxes ,now he wants to be remburst for half the tax money .he will not let anybody use or be on the property until this is paid.
    is this aloud?
    This has dragged on long enough is there anything that can be done to resolve this whole situation. Evertime we try there is always an excuse.

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  12. Hi Lynne,
    The father of my kids passed away last year and left his brother executor of his will. There is a possible court case due to nature of his death. The executor has been contacted several times to sign papers to release information but has yet to do so. If he does not do this can he be removed. He has done nothing that an executor supposed to be doing.

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    1. I think when you say he has been asked to sign papers to release information that you are talking about him being asked to provide an accounting. I'm a bit concerned about the amount of time that has passed because if you or the children need to make a claim for a greater share of the estate, there is a limit on how long you have to make the claim.

      This matter needs to go in front of a judge, in my opinion. I'd need more information to know exactly what has been done so far, whether the will has been probated, etc, and to know exactly what you'd be asking for.

      It could be that the executor is simply overwhelmed, but he still needs to provide information as the decisions made now will impact your kids for years to come.

      If it goes to a judge, he might not be removed. The judge might impose some deadlines on him instead. Being removed is fairly drastic action.

      Lynne

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  13. Hello Lynne,
    Here is one for ya, lol.

    I am as well as my daughter, beneficiaries to my fathers estate. With one of his sisters as executor, things seemed to go well until time for distribution. She seems to think that I am obligated to acquire a sin # for my daughter so that her portion can go into an RESP through the executors personal broker. I kindly refused, stated that I have my own broker that has offered me better investment vehicles with more solid and guaranteed profits. Her broker was fined back in 2014 for off book investing which resulted in lost investments. Since I have made these revelations, she flat out refuses to budge and is steadfast inher decision. What would be my best option to have these funds released with the least amount of hassle?

    Thanks,

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    1. I'm assuming that your daughter's share is being held in trust to a certain age. That being the case, the executor is also the trustee of your daughter's trust, unless the will says otherwise. This means she has full discretion to invest the funds as she sees fit and to choose her investment advisors. Parents find it hard to believe they have no say in it, but they don't. The will has the final say as to who makes the decisions regarding the trust.

      An executor is not permitted to delegate any of her duties that require discretion or judgment. So, she can hire a broker as long as she is making the decisions as to investment goals, timeline, etc, but she can't just hand the whole thing over to someone (including you) and wash her hands of it. If she did, she would be in breach of her fiduciary duty to the estate. So, she isn't being difficult on purpose; she is bound by rules.

      In my opinion, it would require a court order for a change of trustee. I doubt that you would be successful in your application if it were based on fears that things might go wrong. Unfortunately you'd have to wait until the investments actually did go wrong before you'd be justified in trying to cut out her chosen broker.

      I know this isn't the answer you wanted to hear, but as far as I can tell, the executor is just doing her job the way she should.

      Lynne

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  14. Hello Lynne,

    Long story short, clearance has been given on my late fathers estate. My aunt as executor seems to think she can force me to get a sin # for my daughter so that her share is placed in a RESP with her personal broker. After researching and finding out try were charged with off book investing resulting in losses, I flat out refused stating that my broker has alternative investment vehicles that I trust and are not as unforgiving as an RESP. No dice so far. What would be the best move I can make with the least amount of hassle?

    Thanks,
    Darcy

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  15. Hello Lynne,

    I come from a family with 6 siblings. I am the youngest. My three older brothers are the executors. Two of them are owners of my fathers building business. There is a piece of property that has been willed to all of us, but it states in the will that it can't be sold until 5 years after the death of my mom (She died Oct 2012) so that my two brothers can use this property as collateral for their business. (The business is also in a trust for 21 years)At this point they want to buy us out at a very low price. They have recently told us that we must wait for another 16 years to sell (when the trust is up) or take their low offer. They are being very nasty about this and feeling entitled. Firstly, should they be removed because of the conflict of interest as being executors and being so closely tied to the property because of their business, and also should they be removed because of their behaviour. We are really struggling here. Should we get a lawyer to get them removed and what would the chances be of them being removed if we did so.

    Thanks so much.

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  16. Lynne,
    Executor who is my sister, is the only one who knows what was in bank accounts before mom died. She had taken multiple withdrawals of four hundred dollars while mom was in hospital,sick and up to day she died.
    She refuses to give us account statements for the month prior to mom's death. She is also refusing to give us a full and up to date statement from the estate account. She gets abusive and makes threats about reporting our income to the government, landlord etc.
    Especially since we advised of getting a court order. She lowered the executor fee by twenty thousand, but will not give us the information we ask for.
    Can I get a court order, and ask for funds from estate? How long would it take? We have been requesting the info since September. I wrote to you then.
    Thank you for your consideration

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