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.
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.
ReplyDeleteLYNNE 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
ReplyDeleteHmm. 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.
DeleteI 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
Hi Lynn,
ReplyDeleteIf 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
Hi John,
DeleteYes, 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
Hi Lynne,
DeleteI 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
Hi Lynne,
ReplyDeleteI 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
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.
DeleteLynne
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.
ReplyDeleteYes, 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.
DeleteLynne