What Can You Do If an Executor Is Not Doing Their Job in British Columbia?
When someone prepares a will in BC, they name an executor to manage their estate after they die. An executor has significant legal responsibilities including managing, protecting, and distributing a deceased person’s estate according to the wishes they’ve laid out in their will. Even when a person’s wishes are clearly outlined in a will, disputes can still arise once the executor begins administering the estate.
The risk of conflict can be even higher when two or more people are appointed as joint executors of an estate. Joint executors must collaborate and make decisions together throughout the estate administration process. While appointing joint executors can provide accountability and help share the workload, it can also lead to delays, increased costs, and disputes if the executors disagree.
Understanding the role of an executor and recognizing potential red flags early can help executors and beneficiaries address concerns before they escalate into costly litigation. This blog explores the roles of an executor, common warning signs to watch for, and what beneficiaries can do when an executor is not doing their job.
What Does an Executor Do?
An executor is the person named in a will who is responsible for carrying out the instructions in the will. Their responsibilities include:
- Locating the will and arranging the funeral - The executor must locate the most recent will, confirm they have been named as the executor, and arrange the funeral.
- Securing estate property - The executor will need to secure the deceased’s home and valuables, safeguard important documents, and cancel or maintain utilities as needed. The executor must also identify and list out all the estate’s assets and debts.
- Applying for probate in BC - If required, the executor must apply for probate with the supreme court.
- Managing the estate – During the estate and administration process, the executor is responsible for collecting income owed to the estate, paying expenses, and keeping accurate records. Once all debts have been paid and a clearance certificate has been obtained from the Canada Revenue Agency, the executor can distribute and close the estate.
An executor’s authority comes from the will, the BC Wills, Estates and Succession Act, and a grant of probate issued by the supreme court. A grant of probate is a document issued by the court that confirms the executor's authority to act on behalf of the estate. Executors often need to provide that document to banks and other institutions before they can access or transfer estate assets.
Red Flags That an Executor Is Mishandling the Estate
As the beneficiary of an estate, certain behaviours from an executor may be a sign that the estate is not being administered appropriately. If the executor is not being transparent about finances, a beneficiary may want to request an interim accounting. Missing deadlines, vague explanations, or defensive communication may also raise concerns about whether relevant information is being hidden. In any of these situations, beneficiaries can request further information or take steps to ensure that the estate is being administered in accordance with the will.
There are a number of complaints that can be made against executors. Some of the common complaints include:
- Mismanagement or theft - Executors may misuse estate assets or engage in fraudulent activity. Mishandling estate assets can include selling assets below market value or making poor investment decisions.
- Unreasonable delay - Failure to administer the estate in a timely manner by not paying debts or distributing assets is an example of unreasonable delay. If an executor takes too long to apply for probate or delays distribution without any explanation, this can cause problems. For example, if an executor unnecessarily delays selling property, investments, or other assets, the estate may suffer a financial loss because of changes in market value, deterioration, maintenance costs, or other expenses. Also, an estate may continue paying property taxes, insurance, utilities, storage fees, interest, accounting fees, legal fees, maintenance costs, or other expenses while the executor delays dealing with the assets.
- Failure to account - An executor is required to provide a complete accounting of the estate to beneficiaries. If there are missing receipts or they refuse to provide an accounting, this may be a situation in which you need court intervention.
- Conflict of interest - An executor has a duty to act in the best interests of the estate, not their own. A conflict of interest can happen when executors use estate funds for personal expenses or favour a particular beneficiary over the others.
Can an Executor Be Personally Responsible for Legal Costs?
In BC, executors may be personally liable for legal costs when the court decides it would be unfair for those costs to be paid out of the estate. This may happen when their conduct unnecessarily causes litigation, increases costs, or harms the estate or beneficiaries. A court can order the executor to pay costs personally, or award special costs in serious cases of misconduct.
Because executors can be held personally liable, many hire a lawyer to help administer the estate correctly and avoid the kind of missteps that lead to personal cost awards. Being an executor is a serious legal, financial, and personal responsibility. Depending on the estate, it can be time-consuming and complex, with a wide range of tasks involved, and some estates take more than a year to settle. Executors may also have to manage family tension and conflict along the way.
When can an Executor be Removed?
Courts are often reluctant to remove an executor because they want to respect the wishes of the person who made the will. As a result, the court may consider less drastic measures before removing an executor altogether. For example, a judge may order the executor to provide a formal accounting, compel them to perform their duties, such as paying debts or taxes, or restrict their powers and place the administration of the estate under court supervision.
In determining whether to remove an executor, the court will consider what is in the best interest of the estate, as well as the interests of the beneficiaries as a whole, rather than the interests of one beneficiary.
Reasons an executor may be removed include:
- Negligence or intentional misconduct that harms the estate.
- Endangering estate property.
- Lack of capacity to execute duties.
- Concealing information or providing false information to the beneficiaries.
- Putting personal interests ahead of the estate and ignoring their legal obligations.
An executor has significant responsibilities when administering an estate, and problems can arise when those responsibilities are not properly carried out. Many executor disputes involve concerns about delays, a lack of information, or the mishandling of estate assets. While removing an executor is a serious step, beneficiaries may also have legal options when an executor is not fulfilling their duties.
If you are a beneficiary concerned about how an estate is being administered, or an executor who needs guidance and support, the estate planning and litigation lawyers at Crossroads Law can help you understand your options and determine what steps may be appropriate for your situation. Reach out to us by phone or online to book your free 20-minute consultation.
