The Trustee Act provides that where there are multiple executors and one dies then the powers and duties of the deceased executor will vest in the survivor(s) unless the Will contains a provision to the contrary. If the sole or remaining executor of an estate dies before the estate has been fully administered and an alternate executor is named in the Will then such alternate would apply to the court for a Certificate of Appointment of Succeeding Estate Trustee With a Will. If no alternate executor is named in the Will, however, then on the death of the sole or remaining executor, the executor that is named in the sole or remaining executor’s Will (the “new executor”) will succeed the deceased executor once the new executor obtains probate of the deceased executor’s Will. If this occurs, the executorship of the original deceased’s estate is said to have “devolved”.
An executor and/or trustee who has been appointed in a Will may be removed from such office, or may be prohibited from acting, if he or she is incapable because of a conviction for committing an indictable offence, bankruptcy, insolvency, or due to a mental incapacity. In such instances, the Trustee Act empowers a court to remove the person in question and to appoint one or more replacements.
An executor and/or trustee who has commenced acting in that capacity but who no longer wishes to act in that capacity can make an application to the court to be removed. As well, a co-executor and/or co-trustee, or any person who has an interest in the estate (usually a beneficiary), can make an application to the court for the removal of an executor or trustee if such person has breached his or her duties by misconduct, negligence, or inappropriate actions. As a fiduciary, an executor and/or trustee must at all times act in the best interests of the beneficiaries.
Thanks for reading “The Estates Nutshell” – questions and comments are very welcome at estates@cklegal.ca.