League and Williams Lawyers

Tag: executors

Missing Will: Executor Can’t Locate the Will, What Now?
It’s common for people to desire a sense of privacy and confidentiality when they prepare their last will and testament. Some people keep their will hidden to avoid upsetting loved ones with their inheritance choices. If no one knows the will’s location and it remains unfound after the writer’s death, problems can arise. We’ve seen many cases where executors have searched everywhere for the deceased’s will with no success. If the will is missing, they won’t know how to administer the estate in line with the testators wishes.

Is the Will Even Required?

The courts need the original will to grant probate. This means that the executor needs to provide the original will to have the will verified and begin administering the estate. Further, even for a will that doesn’t require probate, the executor needs the will in order to know how to distribute the estate. When the will is completely lost or missing, the law presumes that it doesn’t exist and the testator died without a will.

Presumption of Revocation

There is no presumption of revocation if the will-writer was not the last person in possession of the original copy of the will.

In BC, if we can’t find a will, we assume the writer intentionally destroyed it or hid it. This is the presumption of revocation. Although the document can be confidential, will writers should not hide their will.T he executor should retrieve it easily after the writer’s death. Will writers should notify their executor in writing or leave the will in an obvious location, like a safety deposit box.

As an executor, if you can’t find the original will, there may still be a chance to “save” the will if you have a copy available.

A Copy of the Will is Available

If you have a copy of the will, you can attempt to rebut the presumption of revocation if you can prove that there was no intention to destroy the will. Usually, this means you will need to provide reasons and evidence as to why the will has gone missing and that it was not the writer’s intention for this to happen. To prove this, some evidence that can be used includes:
- Past conversations with the will-writer,
- Other documents written by the will-writer,
- The will-writer’s relationships with the beneficiaries of the will,
- An event causing other documents/property/assets to be destroyed that may have caused the destruction of the will as well, or
- The wording in the copy of the will.
You must also prove the will’s copy is legally valid or curable if you successfully rebut the presumption revocation. Once proven, the courts can issue a grant of probate and the executor can begin to administer the estate.

No Copies of the Will are Available

If the original will is missing and no copies exist, reproducing the will-writer’s instructions is impossible. Because of this, there aren’t any legal remedies to fix or cure the will. You may be able to rebut the presumption of revocation, however, there won’t be another testamentary document to cure into the testator’s final will. In the case where there aren’t any copies of the will, the will-writer will have died intestate and their estate distributed according to intestate laws.

How to Prevent a Will from Going Missing

As a will-writer or future will-writer, to prevent this from happening with your will, the solution is to put the will in a place that is safe but not hidden. We understand that the contents of the will may feel confidential or controversial for loved ones; however, they’re eventually going to see the contents of your will and trying to hide the document will not help anyone. At the very least, your executor should be aware of where the will is and how they can access it. You should store the will where it won’t get accidentally destroyed or moved. Some spots to store a will securely include:
- In a locked filing cabinet,
- In a fire-proof safe,
- In a safety deposit box at the bank, or
- At the will-drafting lawyer’s office.
When choosing to keep your will in a locked cabinet/safe, be sure that the executor will have access to the key. If the safe’s contents are inaccessible, the courts may presume revocation.

If you can’t find the will written by a loved one, contact an experienced estate lawyer today. We can help you to rebut the presumption of revocation or advise you on what to expect from the intestate distribution process.

Have a question about this topic or a different legal topic? Contact us for a free consultation. Reach us via phone at 250-888-0002, or via email at info@leaguelaw.com.
October 4, 2021
Executors Quitting: Can an Executor Quit the Job of Administering the Estate?

The job of an executor is not easy; there’s a number of different responsibilities to prepare the estate for distribution. Many executors agree to take on the role without fully understanding the responsibilities and duties that it entails. Many executors feel overwhelmed and like they’ve taken on a second job once they start administering the estate. They sometimes wonder if they can quit and appoint someone else as the executor. If an executor has already started administration and wants to quit, they have limited options.

Quitting After Administration has Already Begun

Executors can receive executor’s fees to compensate for their work, even if the will doesn’t specify it.

In short, no – executors can’t usually quit before they finish the job once the administration process has begun. Before an executor can leave their position, the courts must approve a petition for removal. This is only necessary if the executor has already started the estate administration process. If the executor has a valid reason for requesting removal, courts can grant it.

An example of a valid reason could be an extreme personal health emergency. If you change your mind halfway through the administration process because it’s too difficult or you lack time, it’s not a valid reason to get removal as executor. To get a petition for removal approved by the courts, the executor must provide detailed accounts of all estate transactions. Essentially, they must leave the estate in a state where another person could easily take over.

Other Options for Executors

If the executor is in the middle of administering an estate and wants to quit, there are options available. Many executors choose to hire professionals to assist them. Depending on the specific issues the executor is having with the administration, accountants or lawyers can be very helpful. While the executor has the authority to handle the estate’s assets, others can assist them with their duties.

If you’re an executor wanting to quit, simply stopping estate administration is not a good option. It could result in you being held liable for resulting losses. Beneficiaries of the will can take action to force the executor to speed up the process. If the executor continues to unduly delay the administration of the estate, they can be removed and held personally liable for any losses suffered by the beneficiaries as a result of the mishandling of the estate. Leaving the executor’s duties untouched is never a good option for an executor, and an executor who finds themselves at their wits end should seek professional assistance with their duties.

Resigning Before Administration has Begun

Before being legally appointed executor of the will, the named executor can resign from their role. As described in section 104 of the Wills, Estates and Succession Act, this is called renunciation of executorship. The executor does not need to provide any reason for resigning; they simply must file an official document with the courts. After renunciation of executorship, the executor can’t “go back” and try to gain executor status at a later time. If there is an alternate executor named in the will, they will be appointed the duties of executor. If there is not, an interested party can apply to be the administrator, similar to the process of an executor being chosen in an intestate estate.

When the will-writer is still alive, it’s easiest to simply notify them that you do not want to be their executor after they pass away. This way, the will-writer has the option to name someone else who they want to be their estate’s executor, avoiding a lengthy renunciation of executorship and reappointment process after their death. You will not have to file any official documents with the court if the will is changed to name someone else as the executor.

If you’ve been named as an executor of an estate and you do not want to take on this role, contact an experienced lawyer today. We can work to ensure that you are lawfully removed as executor when it’s an option, or help to make the administration process as easy as possible.

Have a question about this topic or a different legal topic? Contact us for a free consultation. Reach us via phone at 250-888-0002, or via email at info@leaguelaw.com.

June 14, 2021
Probate Notice Period: Who needs to be notified?
Before administering an estate, the executor usually must file for probate and receive court approval. Probate confirms the will’s validity and grants the executor authority over the estate assets. The process applies to any estate with a value exceeding $25,000. Before beginning to administer the estate’s assets, the executor must notify specific people about the probate filing. This is known as the probate notice period, and is important for those who may wish to challenge a will’s contents.

Who is Entitled to Notice?

Per rule 25-2 of the Supreme Court Civil Rules, the executor who intends to apply for probate must notify interested parties at least 21 days before they submit the probate application. Further, the executor must provide a copy of the will for each person who is to be notified. The people who are entitled to this information and a copy of the will include:
- All executors and alternate executors of the will,
- All beneficiaries of the will, and
- Anyone who would have been an intestate successor, assuming a will was not written and the estate was larger than what the spouse would inherit.
Intestate Estates (Dying Without a Will)

When you die without a will, your estate is intestate. Your assets are distributed according to the laws of intestacy, and there is an established order of priority for individuals who become your successors. Depending on if the will-writer has a spouse or children, the intestate successors can vary. For more information, read our blog on how assets are distributed in intestacy. Anyone who would be entitled to parts of the estate in intestacy are entitled to a notice of probate.

In cases where the deceased didn’t write a valid will, the list above is not fully relevant. While there isn’t a will, the estate will likely still go through probate. The person’s estate must be administered and distributed even in intestacy. The people entitled to a probate notice for an intestate estate include:
- Anyone who is an intestate successor, assuming the estate is larger than what the spouse will inherit and
- Any creditor who is seeking greater than $10,000 from the estate.
What This Means for Will-Writers

Any will that is granted probate becomes public record for any interested person to view.

For will-writers, this shouldn’t be a concern unless you had plans to disinherit someone from your will. People who want to disinherit an estranged child usually assume that they can do this in a private manner and without the child knowing until after the estate is distributed. This usually isn’t the case as the executor will notify the child of the probate application. From there, it’s safe to assume the child will challenge the will if they’ve been unfairly disinherited. See our blog on invalid (and illegal) reasons for disinheriting a child.

What This Means for Beneficiaries

Sometimes, beneficiaries of a will don’t know that they’re a beneficiary and worry whether they’ve been left out of the will. If you receive no notice of probate, and you’re not someone who falls under the intestacy succession plan, you were likely not named as a beneficiary in the will. However, if you would have been entitled to a portion of the estate if it had fallen into intestacy, you could be someone with standing to bring a claim against the estate if you were excluded from the will.

What This Means for Executors

Executors need to be aware of these requirements and ensure they know who is entitled to a notice of probate. The estate administration process can be a lengthy journey, and the last thing you want to do as an executor is further complicate the process.

If you’re unsure who will be entitled to a probate notice for your estate, contact an experienced estate lawyer today. We can help to clarify how the estate administration process will be handled, ensuring that there are no surprises or unexpected results after you pass away.

Have a question about this topic or a different legal topic? Contact us for a free consultation. Reach us via phone at 250-888-0002, or via email at info@leaguelaw.com.
April 28, 2021
Role of a Beneficiary: What Can and Should a Beneficiary Do?

If you’ve recently been named as a beneficiary of a will for the first time in your life, you’re probably wondering what you have to do to receive your inheritance. In some cases, beneficiaries don’t even know that they are a beneficiary in the deceased’s will until after the will-writer has passed away. Either way, a beneficiary of a will has a minimal role in the estate administration process. In most cases, the beneficiary can sit back and wait patiently for their inheritance to arrive.

The executor(s) of the will are the people responsible for administering the estate. Once they have finished the administration process, they are able to distribute the estate assets to the beneficiaries as described in the will. Beneficiaries don’t have the contribute to the administration process, and they do not have to pay any money to the executor or any one else to receive their inheritance from the estate. There are a number of inheritance scams where fraudulent people or businesses try to trick people into paying a fee to receive an inheritance that doesn’t actually exist. To reiterate, inheritances never have a fee attached to them and any gift received as part of a will is not subject to income tax.

Unfortunately, sometimes the executor of the will fails to fulfill their duties to the detriment of the beneficiaries. When this happens, the role of the beneficiary expands and beneficiaries are able to take action to ensure that they receive their inheritance in a fair and timely manner.

When Beneficiary Action is Required

While beneficiaries have a minimal role to play during estate administration, this doesn’t mean that they are left helpless at the hands of an incompetent executor. When an executor is failing to administer the estate or not properly meeting the responsibilities and duties of an executor, beneficiaries can and should take action. Depending on the executor’s actions or lack thereof, a beneficiary has different legal remedies available to exercise.

Slow Executors

Beneficiaries never have to pay money to receive an inheritance.

Executors typically have a 1-year period from the date of the will-writer’s death to finish the entire estate administration process. This is called the executor’s year. Most motions started by a beneficiary during this time will not be heard by the courts. This is a common law principle so remember that there are exceptions to this rule which can arise.

When an executor fails to administer the estate within the executor’s year, beneficiaries can begin to take action to speed up the process. There are various different types of delays – both reasonable and unreasonable. When the administration is unreasonably delayed, beneficiaries will be able to take legal action. For more information, read our blog on what can be done about slow executors.

In the most extreme scenarios, executors can be removed by the courts. This is a last resort option for courts as it is contrary to the final requests of the will-writer. For more information, read our blog on removing an executor.

Inaccurate Accounts

Once a will’s executor has finished administering the estate, they must send a detailed account of everything that went into and out of the estate. This is to ensure that the executor didn’t forget about any assets or commit any fraudulent behaviour. Beneficiaries should be extremely careful to look through the details of the account, ensuring that there are no mistakes or errors. If a beneficiary notices a discrepancy, they can begin to take action against the executor.

If a beneficiary notices an estate asset has gone missing, they can force the executor to act, proving to the courts everything that has gone into and out of the estate. For more information, read our blog on forcing an executor to act.

In the more extreme cases, a beneficiary is able to sue the executor on behalf of the estate. Since the beneficiary is not actually in possession of or the legal owner of any piece of the estate yet, they must sue on behalf of the estate. For more information, read our blog on beneficiaries suing on behalf of an estate.

If a beneficiary believes a debt belonging to the estate should be paid that was not, they can file for the courts to order the executor to pay the debt. The beneficiary will not be held liable if they are given their share of the estate and a debt is later realized to have not been paid by the executor. For more information, read our blog on the rights of beneficiaries in terms of debt.

If you’re a beneficiary of a will and are unsure about what you should and shouldn’t do in your situation, contact an experienced estate lawyer today. We will ensure that you receive the inheritance that you’re entitled to.

Have a question about this topic or a different legal topic? Contact us for a free consultation. Reach us via phone at 250-888-0002, or via email at info@leaguelaw.com.

February 3, 2021
When a deceased’s assets go missing: what can be done?
The executor of an estate has several responsibilities. These include accounting for all assets, debts, and funds entering or leaving the estate. When the executor is ready to distribute the estate to the beneficiaries, they are required under BC’s Trustee Act to provide a comprehensive account of everything that went into and out of the estate during administration. This account information must include:
1. What the original estate was;
2. All the assets received by the estate; and
3. All the assets remaining to be distributed.
Beneficiaries are entitled to this information and have a legal right to request this information at any time during the estate administration process.

Assets Missing from the Estate

If an executor cannot account for an asset, they can, in some cases, be ordered to pay for this out-of-pocket.

An estate inheritance can sometimes significantly change a beneficiary’s life. It can be very stressful when the executor isn’t managing the estate as expected. Unfortunately, some executors have attempted fraud or theft by taking parts of the estate and not accounting for them. In other cases, estate assets simply go missing because of the executor’s inattention to detail or carelessness. Beneficiaries should proceed cautiously when agreeing to the accounting details, ensuring all assets are properly accounted for. While they might feel powerless during the estate administration, beneficiaries do have rights to protect their interests. If a beneficiary is suspicious of the accounts or believes an asset is missing, they should take action. They can ask the executor to prove the accounts are correct in court.

Passing of Accounts – Proving the Account’s Accuracy

When a beneficiary disagrees with the accounts provided by the executor, they can formally challenge them. This process is called a passing of accounts. A passing of accounts is a court hearing where the courts review the account to determine if the challenge is reasonable or not. The courts will consider a broad range of detailed evidence to determine if anything “went missing” or was miscalculated. In most cases, the courts will need to review the entire account and all the transactions involved. If the executor was not diligent with their record keeping throughout the estate administration process making sure to track all assets and transactions, it can be difficult to prove the account is accurate.

As described in the case of the Estate of Fannie Cleverley (2000), the purpose of the passing of accounts is to “determine whether the executor has exercised his duties under the will properly and in accordance with the law.”

Tracing the Missing Asset

In some cases, claimants have been able to prove that an estate asset has gone missing even though the executor is not in possession of that asset. The asset must then be traced in order to recover it from whoever possesses it. The person who is in possession of the missing asset will be ordered to return the asset to the estate where it will then be distributed as detailed in the will.

Reminders for Beneficiaries

Beneficiaries do not have a lot of control over the estate administration process, however, there are options available to them to ensure that the process is done correctly. If you’re a beneficiary who is suspicious that the executor may have stolen an asset from the estate, contact an experienced estate lawyer today. We can ensure that the estate is administered appropriately and the beneficiaries are given their fair share of the estate.

Have a question about this topic or a different legal topic? Contact us for a free consultation. Reach us via phone at 250-888-0002, or via email at info@leaguelaw.com.
December 18, 2020
Picking an Executor: Who Should You Choose?

Choosing an executor for your estate is a key step in the will-writing process. There are many factors to consider, and it’s not always as simple as choosing a family member or friend. The job of an executor can be complex, involving many different tasks as they prepare the estate for distribution to beneficiaries. Before appointing an executor, it’s important to understand who is eligible, and who would be a good fit.

Who Can Be an Executor?

Almost anyone can be the executor of a will in BC. This can include beneficiaries named in the will, a spouse, a best friend or even a lawyer. The only requirement is that the executor is not a minor (they must be at least 19 years old).

Naming Multiple Executors

A person named as the executor of a will can decline the duty before beginning the estate administration.

Will-writers are able to name multiple people as executors of their will – known as co-executors. This is beneficial in some cases as it spreads the workload across multiple people. However, co-executors must agree to all decisions made on behalf of the estate. This can further complicate or prolong the estate administration process. Frequently, parents choose to name all of their children as co-executors in the interest of fairness. If some of the children have moved away, the task of coordinating the administration process can become more difficult. Naming co-executors can be beneficial in some cases, but can be detrimental in others. It is important to carefully consider who to appoint. In cases of co-executorship, it is essential that the executors are able to work well together.

Naming a Professional Executor

For will-writers looking for a truly neutral party to act as executor, a professional executor can be appointed. They are often lawyers, notaries or accountants. This will cost more than naming a loved one would, however, it will ensure that the estate is administered at a professional level. Sometimes, people choose to name a professional and a family member as co-executors. This way, the family member can handle most of the estate affairs, and the professional can assist them. This ensures that the administration is done properly and efficiently. For more on this, read our blog on whether you should appoint a professional executor or not.

Characteristics of a Good Executor

Will-writers should be sure that they are choosing the right person to act as executor of their will. Will-writers should choose an executor who is objective, trustworthy, lives nearby, and willing to take on the role.

a)      Objectivity

Executors must act in the best interest of the estate’s beneficiaries and strictly adhere to the will’s directions. If the executor is named as a beneficiary in the will, which they often are, they should always be acting from an objective standpoint. The executor cannot act in ways to maximize their benefit from the estate at the cost of other beneficiaries’ entitlements. Objectivity is essential to the estate administration process and it’s important that the executor can take a neutral position when making decisions on behalf of an estate.

b)      Trustworthiness

Because of the authority and power that an executor has over the distribution of an estate, will-writers should always name someone who they feel is trustworthy. Estate administration can involve handling large amounts of money – paying unpaid debts owed by the estate, selling estate assets, etc. Even though executors must provide a detailed account of everything that went in and out of the estate, an interested party must be very thorough to notice if the executor has attempted theft.

c)      Residing in the Same City

Naming an executor who is living near the place where the estate assets reside is very important. If someone who lives outside of Canada is named as executor, there can be significant complications as they transfer the estate’s assets. Further, they will run into a number of obstacles trying to fulfill all of their responsibilities while abroad. It is always recommended that the executor be someone who lives in the same city as the assets, or someone who can easily travel to the city for an extended period of time to administer the estate.

d)      Willingness

If you are named the executor of an estate in a will, you will not be forced to take on the role. Will-writers should talk with the people who they want to be their executor to ensure that they are willing and prepared to take on the responsibility. Someone who is unwilling or reluctant to administer the estate is less likely to do a good job of the administration, or could cause significant delays in the distribution of the estate. Even if you think someone would be a great fit for the job, you must make sure they are willing. Usually, the executor’s job requires significant time and energy, and the role can place a large burden on some.

If your estate is large and complex, it can feel like a second full-time job to your executor as they work to administer your estate. Ensuring that an executor understands the role they’re agreeing to and the tasks which they’ll be responsible for is important in making sure they can handle the job. It is advisable to discuss the role with the person who one would like to name as their executor before their death, as if an executor renounces their title after the death of a testator, the courts will have to appoint a new one which may conflict with one’s final wishes.

Ultimately, it’s up to the will-writer to choose who their executor should be. If you’re unsure who to appoint, contact an experienced estate lawyer today. We can help you to pick someone who will properly administer your estate.

Have a question about this topic or a different legal topic? Contact us for a free consultation. Reach us via phone at 250-888-0002, or via email at info@leaguelaw.com.

November 30, 2020
Notice of Dispute: Preparing to Challenge a Will
To challenge a will, interested parties can issue a notice of dispute to the courts to pause the estate administration. For the majority of will challenges, the notice of dispute must be issued before the will has been granted probate. When issued, the probate courts are unable to grant probate and must wait until the notice has been dealt with. In essence, the notice of dispute will put the estate administration on hold until it is removed.

Who Can Issue a Notice of Dispute?

Rule 25-10 in the Supreme Court Civil Rules specifies the laws surrounding notices of dispute in BC. Essentially, anyone who has an interest in the estate is able to file a notice of dispute. More specifically, the people who can issue one are:
- Any executors or alternate executors of the will,
- Any beneficiaries of the will, and
- Anyone who would have been an intestate successor, assuming a will was not written and the estate was larger than what the spouse would inherit solely.
Depending on the family structure of the will-writer, intestate successors for each estate can vary. For more information, read our blog on how assets are distributed in intestacy.

As an interested party, you are entitled to a notice of probate. The executor must notify you that the will is planning to be probated soon and provide a copy of the will at least 21 days before probate is granted. If you’re someone who is entitled to a notice of probate, you’re also someone who is able to issue a notice of dispute. Further, there can only be one active notice per will.

Valid Reason for Issuing a Notice

A notice of dispute can be renewed after a year by the disputant if they have good reason for renewal.

The courts will only allow a notice of dispute when the claimant has a legally valid reason for issuing it. An example could be a beneficiary who has proof that the will was incorrectly witnessed and is therefore invalid. By issuing a notice of dispute, this beneficiary could file to have the will proven in solemn form.

On the other hand, if a person issues a notice because they’re unhappy with the terms of the will, even though the will is valid, the notice will likely be quickly dismissed. In general, the notice of dispute is meant to speed up the probate process and minimize delays while allowing interested parties a fair opportunity to raise any concerns. People who have valid reason for issuing a notice must act fast so that the will administration process can keep progressing.

Removing a Notice

A notice of dispute can be removed either by the disputant formally withdrawing it, the courts dismissing it, or when the document simply expires. The only time the courts will remove a notice is when they believe that it’s not in the best interests of the estate to uphold the notice. As an estate executor, you likely want to remove a notice of dispute quickly to begin administering the estate. To do this, you will file an application to have the noticed removed. The courts will accept the application if it’s believed that the notice is against the best interests of the estate.

A disputant has a year to take action and have the issue resolved. After a year, the notice of dispute will expire if it has not been renewed. From there, the executor can file for probate and begin estate administering.

If you wish to issue a notice of dispute and challenge a will, contact an experienced estate lawyer today. We will make you and your case a top priority, ensuring you receive the inheritance you’re entitled to, no matter what it takes.

Have a question about this topic or a different legal topic? Contact us for a free consultation. Reach us via phone at 250-888-0002, or via email at info@leaguelaw.com.
November 16, 2020
Citation: Forcing the Executor to Apply for Probate
For beneficiaries, it can be frustrating to wait for the executor to apply for a grant of probate. Unfortunately, some executors deliberately delay the administration process or completely fail to take action. Regardless of how slow the executor is, beneficiaries can feel helpless in their ability to speed up the process. Family politics, legitimate delays, or suspicious and fraudulent behaviour can delay administration. Beneficiaries suffer because of executors who act slowly. Assets can change in value over time and the cost of maintenance on those assets can accumulate.

When executors completely fail to apply for probate, beneficiaries can take legal action to advance the estate administration. Beneficiaries and interested parties can file a citation, compelling the executor to act.

Filing a Citation

Beneficiaries are not the only people who can file a citation, any interested party can.

A citation forces an executor to either act, or risk facing removal as the executor of the will. The courts will appoint a new executor if they remove the current executor. The new executor can then apply for a grant of probate themselves.

To issue a citation in relation to the probate of a testamentary document, the citor must have an interest in the estate, and knowledge or belief that a testamentary document exists and is in the possession of the executor. Citations must be directly served to the executor in-person. Once served, the executor has 14 days to take action. A person who receives a citation to apply for probate can:
1. Apply for a grant of probate,
2. Provide a valid explanation of why they haven’t filed yet, or
3. Renounce their executorship.
After Receiving the Citation

After receiving a citation, an executor will have 14 days to take action. This does not mean that they must immediately apply for a grant of probate upon receiving a citation. However, they must take action in some way to progress the administration of the estate. If the citation compels the executor to provide a copy of the testamentary documents, they must comply within 14 days. When the citation concerns the status of probate, the executor must take action of some form within 14 days. However, the time restriction is 6 months after the day of the citation being served.

If probate has already been applied for but has not been granted by the courts yet, the executor is simply required to provide documentation to the citor, demonstrating that probate has been applied for and they can take no further action until it is granted. This is an action that the executor would have to perform within 14 days of being cited. However, if they have not applied for probate, they must do so in a timely manner so that it will be granted within 6 months from the date of receiving the citation.

If after 6 months no probate has been granted, the executor can be removed. The time frame of 6 months can seem like a long time, however, probate can be a lengthy process. If there are any applications to challenge the will during this process, the length of time given to the executor is likely to be extended.

Failure to Answer the Citation

If the executor does not answer the citation, either refusing to issue a grant of probate or not providing explanation as to why probate has not been granted, they can be removed as executor. Once the executor is removed, the person issuing the citation has options available to proceed with the estate administration process.

According to section 25 of the Supreme Court Civil Rules, once the executor has been removed, the person who issued the citation can apply for:
1. A grant of probate or a grant of administration with will annexed in relation to the testamentary document or another testamentary document;
2. An order under section 58 of the Wills, Estates and Succession Act curing any deficiencies in the testamentary document;
3. An order that the testamentary document is a will proved in solemn form; or,
4. If the testamentary document is in the possession of a cited person, the issuance of a subpoena under Rule 25-12 to require the cited person to file the testamentary document.
Reminders for Beneficiaries

Since executor removal directly conflicts the will-writer’s wishes, it can be a difficult process to find a replacement to take over executorship of the estate. It’s not as simple as appointing the person who filed the citation the executor. The will may need to be cured and modified to enact a new executor or the will may need to be proven in solemn form. The will is required for probate to be granted, so, in some cases it may be necessary to subpoena the original executor to provide estate administrators with the will.

If you’re a beneficiary who is suffering because of a slow executor, contact an experienced estate lawyer today to begin solving the problem.

Have a question about this topic or a different legal topic? Contact us for a free consultation. Reach us via phone at 250-888-0002, or via email at info@leaguelaw.com.
June 17, 2020