While a personal representative is meant to act in the best interests of the deceased and their beneficiaries, there are situations where they may not fulfill their responsibilities, leading to the need for removal. In this article, we will discuss the process of removing a personal representative in Alberta, Canada.
What is a Personal Representative?
A personal representative is someone who is appointed by a deceased individual to carry out the terms of their will. This person is responsible for managing the estate of the deceased, including distributing assets, settling debts, and fulfilling any other wishes specified in the will. A personal representative can be an individual, such as a family member or friend, or a professional, such as a lawyer or trustee.
In Alberta, personal representatives have certain obligations, including acting in the best interests of the estate and its beneficiaries, keeping accurate records of all estate transactions, and communicating with beneficiaries throughout the process. The personal representative is also required to distribute the assets of the estate in accordance with the terms of the will, and to settle any outstanding debts and taxes.
What if a Personal Representative is not being Fair?
In some situations, a personal representative may not act in the best interests of the estate or its beneficiaries, leading to a need for removal. This can occur when the personal representative fails to properly manage the estate or engage in conflicts of interest. For example, a personal representative may sell assets of the estate to themselves or family members at a lower price than what they are worth. Alternatively, a personal representative may refuse to distribute assets to beneficiaries, or withhold information about the estate from beneficiaries.
If a personal representative is not being fair, beneficiaries may have the ability to seek removal of the personal representative from their role. However, it is important to note that simply disagreeing with the personal representative’s decisions or approach is not enough to warrant removal.
What are Reasons to Remove a Personal Representative?
There are several reasons why a personal representative may need to be removed from their role in managing an estate.
These reasons can include:
FAILURE TO PROPERLY MANAGE THE ESTATE
If the personal representative is not fulfilling their obligations in managing the estate, including failing to pay taxes, settling debts, or distributing assets, they may need to be removed.
CONFLICT OF INTEREST
BREACH OF FIDUCIARY DUTY
MISCONDUCT OR FRAUD
Failure to Act Results in Personal Representative Removal
If a personal representative’s delay is affecting the administration of an estate, an Alberta court can remove them. In the case of Schnuerer Estate (Re), 2019 ABQB 830, the beneficiaries of the estate applied to remove the personal representative, citing section 8 of the Estate Administration Act, which allows the court to do so if the representative has failed to perform a duty or core task.
The court initially decided not to remove the representative but instead imposed deadlines for certain tasks. However, when the representative missed these deadlines, the beneficiaries made a second application to have them removed.
The court ultimately removed the representative due to their various delays and failures, including delaying the grant of probate, failing to retain counsel to sell the estate house, and causing the estate house to lose value through delayed sale.
This case illustrates the types of conduct a court may take into consideration when faced with an application to remove a personal representative and highlights the importance of timely and efficient administration of estates.
This can be a complex and time-consuming process, and it is the personal representative’s responsibility to ensure that it is carried out properly.
However, if a personal representative is not fulfilling their duties in a timely and efficient manner, it can cause problems for the beneficiaries and the estate as a whole. This is why the court has the power to remove a personal representative in certain circumstances, as demonstrated in the Schnuerer Estate case.
It’s worth noting that the court will not remove a personal representative lightly and will only do so if it is necessary to ensure the proper administration of the estate. In many cases, the court may choose to impose deadlines or other requirements to ensure that the personal representative is fulfilling their duties in a timely manner before resorting to removal.
If you are a beneficiary of an estate and believe that the personal representative is not fulfilling their duties properly, it’s important to seek legal advice as soon as possible. An estate lawyer can help you understand your rights and options and may be able to assist you in making an application to the court if necessary.
Overall, the administration of an estate can be a challenging process, but it’s important to ensure that it is carried out properly to ensure that the deceased person’s wishes are respected and the beneficiaries receive the assets they are entitled to.
How do you remove a Personal Representative in Alberta?
To remove a personal representative in Alberta, beneficiaries of the estate will need to bring an application to the court. This application will need to outline the reasons for the removal and provide evidence to support the allegations.
The court will consider the evidence and may hold a hearing to determine whether the personal representative should be removed from their role. The court will also consider the best interests of the estate and its beneficiaries when making a decision.
If the court orders the removal of the personal representative, it may appoint a new personal representative to manage the estate. The new personal representative will be responsible for settling any outstanding debts and distributing the assets of the estate in accordance with the terms of the will. The former personal representative may be required to provide an accounting of all estate transactions and to repay any debts or assets that were improperly managed or distributed.
It is important to note that removing a personal representative from their role can be a complex and lengthy process. Beneficiaries of the estate should seek the advice of a lawyer who is experienced in estate law to guide them through the process and ensure their interests are protected.
Removing a personal representative from their role can be a difficult and emotional process. However, if the personal representative is not fulfilling their obligations or acting in the best interests of the estate and its beneficiaries, it may be necessary to seek their removal.
Beneficiaries of the estate should seek the advice of an experienced lawyer to guide them through the process and ensure their interests are protected. With proper legal guidance, beneficiaries can successfully remove a personal representative and ensure the estate is managed in a fair and equitable manner.
We currently have three offices across Alberta — Edmonton, Calgary, and Red Deer. However, we serve the entire province of Alberta. We also have the infrastructure to work with any of our clients virtually — even the furthest regions of Alberta.
We also have a dedicated intake form to help you get the ball rolling. Our intake team will review your specific case and advise you on the next steps to take as well as what to expect moving forward.
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WILLS and ESTATES LAWYER
Heather Tyminski is a lawyer in the firm’s Calgary office with many years of experience practicing estate law.