Apr 06, 2022
What's New in Ontario's Probate Laws for 2022?
Ontario’s Succession Law Reform Act determines how wills and estates are executed. Here are the new changes for 2022.
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When the deceased has a last will & testament, there is often a named executor to handle all of the pieces of the estate settlement process. Executors may handle real estate transactions, pay outstanding debts, oversee the transfer of assets, and are responsible for answering questions and providing information to beneficiaries.
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When closing out an estate, the executor may have lots of individual tasks to complete. Equitable distribution according to the instructions in a will can take time. In some cases, an estate may have more than one executor which can require considerable cooperation between the two.
Executors are responsible for settling the estate and making sure every beneficiary gets what they are entitled to. An executor is also obligated to act in the estate’s best interest.
What Could Cause the Courts to Remove an Executor
In British Columbia, the probate court may decide to remove the executor if certain issues arise. Usually the removal of an executor is demanded by beneficiaries who feel that the executor isn’t carrying out their duties. However, just disliking or not getting along with an executor are not grounds for removal. There are generally four categories of actions that can lead to an executors removal:
These categories have some nuance. For example, a delay might be reasonable if an executor is waiting to sell certain assets, since in some cases early sale may result in a lower price and reduce the amount distributed to beneficiaries. However, if the delay is occurring because an executor is simply not carrying out their duties and instead taking an extended holiday in Mallorca, then a judge could see grounds for a removal.
Conflict of interest claims can also be difficult to quantify. For example, if one or more of the beneficiaries chooses to contest the will, the executor may not be considered to be in conflict. After all, the executor has no say in how the property is distributed. Their job is simply to make the distributions based on the final ruling on which will is valid. Being a beneficiary and simultaneously an executor is also not a conflict of interest. However, if the executor is also trying to purchase a property from the estate at a lower market value, for example, they’d be in danger of having a conflict of interest.
For a misconduct claim, beneficiaries must usually be able to demonstrate flagrant abuse, such as stealing from the estate. Without evidence of misconduct, probate courts generally decline to switch executors.
In general, hostility between the executor and beneficiaries is not enough to justify the removal of an executor, nor are technical errors made in good faith. However, an executor that regularly favors one beneficiary over another or provides more access to one party might be removed.