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

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.