Some Tips on Paying Estate Debts

One of an estate trustee’s duties is to pay the debts that a deceased individual owed when he or she died.  As I have previously discussed, the estate trustee is generally not personally liable for the deceased’s debts – they are paid from the assets of the estate.  However if an estate trustee distributes the estate assets to the beneficiaries before debts have been satisfied, the estate trustee might be personally liable for any amounts owing. 

One way for an estate trustee to avoid being on the hook for debts after the distribution of th estate is to advertise for creditors.  Section 53 of the Trustee Act provides that an estate trustee will not be personally liable for claims by creditors within the amount of time specified in a notice published.  In other words, if the estate trustee puts an advertisement in a newspaper asking creditors to contact her within a specific time, the estate trustee will not be personally liable for claims that are not made by the specified date if she then distributes the estate. 

Unfortunately, s. 53 is not specific about the form, content, or timing the notice should take.  However, certain rules of convention have emerged.  Generally, an estate trustee should advertise at least three times in a local paper (where the deceased lived) and allow no less than thirty days between the date the advertisement was first published and the stated date on which the estate will be distributed. 

As a final note, it is important to be aware that s. 53(2) of the Trustee Act provides that the effect of advertising for creditors is not to actually extinguish any claims the creditors might have – it is simply to protect the estate trustee.  The creditors will still have the ability to trace the distributed assets of the estate to the hands of the beneficiaries.             

How Do You Obtain Probate When There's No Will?

I’ve previously blogged about who’s entitled to be the estate trustee when there’s no will; however finding the appropriate candidate isn’t all that’s involved – the prospective estate trustee must be actually appointed by the court to obtain the necessary authority to administer the estate. 

This is not simply a procedural issue – where someone dies with a will naming an executor, that executor’s authority derives from the will itself (although most frequently, in order to gain control of estate assets, the named executor will require the court to grant a certificate of appointment).  However, where there’s no will, no one has the authority to administer the estate until probate has been granted by the court. 

The appointment necessary when an individual dies without a will is referred to as a “certificate of appointment of estate trustee without a will” and the procedure involved falls under rule 74.05 of the Rules of Civil Procedure.  

To begin with, the prospective estate trustee is required to file an application for a certificate of appointment.  In doing so, she is required to put on notice (by way of the required notice of application) the beneficiaries of the estate (if a beneficiary is a minor, The Children’s Lawyer must be put on notice; if a beneficiary is mentally incapable, The Public Guardian & Trustee must be put on notice). 

Additionally, the prospective estate trustee must file with the court a renunciation of anyone who is otherwise entitled to be appointed as estate trustee and who is not otherwise applying (s. 29 of the Estates Act specifies who that would be).  Consents by the beneficiaries who, together, have a majority interest in the estate are also required.

Finally, it should be noted that s. 35 of the Estates Act requires the prospective estate trustee to post a bond – unless he or she is the spouse of the deceased and the value of the estate does not exceed the preferential share prescribed by s. 45(6) of the Succession Law Reform Act (currently $200,000).   

5 Biggest Mistakes Trustees Make

Barron’s, the weekly newspaper in the United States, recently published a list of the five biggest ways that trustees botch their roles.  These are issues of which every executor or trustee should be mindful. 

According to Barron's, the most common mistakes are as follows:

  1. Not keeping proper records – a trustee has an obligation to be able to account to beneficiaries for her administration of assets and not being able to do so can lead to personal liability on the part of the trustee.
  2. Not diversifying investments – sometimes trustees don’t carefully consider the investments being made with trust assets and when this happens, and those assets decline in value, the beneficiaries will often blame the trustee.  In Ontario, trustee investment powers are set out in s. 27 of the Trustee Act.
  3. Not being even handed toward the beneficiaries – when there is an ongoing trust, there are usually two classes of beneficiaries – the income beneficiaries (who have a current interest) and the capital beneficiaries (who have a remainder interest).  As I discussed in a previous blog, unless specifically provided for in the will, the trustee has the obligation two treat both classes fairly.  
  4. Not understanding the laws relating to trustee compensation – while trustees are entitled to compensation, there are rules regarding how much can be taken and when it can be taken.   
  5. Not understanding the legal risks involved with being a trustee – it is important to remember that when things go wrong with the administration of an estate a trustee can be sued by the beneficiaries.

There’s a 6th mistake I frequently see executors make that can cause big problems: ignoring (or not understanding) the terms of the will or trust and the obligations those terms impose on the trustee.  Even when the will seems clear on its face, it’s a good idea for a trustee to show it to a lawyer – it’s not uncommon for a trustee to not know what she doesn’t know. 

Who Administers the Estate When There's No Executor?

Last week I blogged about an executor’s ability to renounce his appointment if he doesn’t want to act, which leaves an important question – who administers the estate where there’s a will and no executor willing or able to act?  A similar question arises where the deceased dies without a will (an “intestacy”), meaning there was no one named as executor.   

Where the deceased died with a will, she may have named an alternate executor.  In this case, that individual has the authority to act.  However, where there is no one named as alternate executor (or there was no will to begin with) the court must appoint one. 

Section 29(1) of the Estates Act provides the court with the authority to appoint an estate trustee where this is an intestacy or where the executor named in the will cannot act. Specifically, s. 29(1) allows the court to appoint the deceased’s (a) spouse/common law partner; (b) next of kin; or (c) spouse/common law partner and next of kin.  Where there are more than one individual “equal in degree of kindred” asserting rights as next of kin, the court has the authority to appoint more than one person.       

The general practice of the courts has been to prefer the spouse/common law partner’s right to the appointment over that of the next of kin.  However, this is not an absolute rule – in Mohammed v. Heera, Justice Warkentin noted that while there might be a “usual” order of priority when determining who should receive the appointment as estate trustee the court maintains an unqualified discretion.  This means that the ultimate decision is that of the judge alone. 

The practical reality is, as noted above, that where the deceased is survived by a spouse, the court will appoint the spouse unless there is good reason not to do so. 

Help! I Don't Want To Be The Executor!

Being named as an executor can be an honour – it’s a sign that a friend or family member trusted you enough to administer her estate.  However, it’s also a lot of hard work…and for some it’s just not worth the headache.  No one can be forced to be an executor and a named executor who does not wish to act and has not yet administered the estate can renounce the appointment.  

While an executor who wants to renounce her appointment isn’t required to provide an explanation, some of the more frequent reasons include: lack of time, a conflict of interest (e.g. the executor has a claim against the estate), a bad relationship with the beneficiaries, the estate is insolvent, or there will be litigation involving the estate.  

Whatever the reason an executor has for renouncing, the renunciation must occur before probate has been granted (and should occur before the executor has started to administer any assets – or the executor may be said to have “intermeddled” with the estate). 

So, how does an executor renounce?  This can be done by completing a renunciation (which is form 74.11 under the Rules of Civil Procedure and officially called a “Renunciation of Right to a Certificate of Appointment of Estate Trustee (or Succeeding Estate Trustee) With a Will”).

If probate has been granted and an executor wishes to step down, it is still possible; however, it is a little bit more complicated (and time consuming).  A court application must be commenced under s. 37(1) of the Trustee Act and the court must order the removal. 

Any executor applying to court for removal should give serious consideration to also passing accounts or, alternatively, providing estate accounts to the beneficiaries and obtaining a release – an executor’s liability for her administration of an estate isn’t automatically “waived” with a removal order.    

How Long Can an Executor Wait to Distribute an Estate?

The general rule in estate administration is that an executor has twelve months to realize the assets of an estate (referred to as the “executor’s year”).  However, the terms of a Will often give the executor the discretion to determine when and how to liquidate the estate.  The recent decision of the Supreme Court of British Columbia in Hriczu v. Mackey Estate considers how long the executor might have.

Here, the deceased died in 2000 leaving a will dividing the residue of her estate in equal shares between five relatives.  The main asset of her estate was a piece of land. By 2011, the land remained unsold. 

One of the beneficiaries (the plaintiff) who had previously agreed to hold the land decided she wanted it sold.  She was living in impoverished circumstances and wished to receive her inheritance.  When the executor refused, the plaintiff commenced an action seeking, amongst other things, an order that the land be sold. 

The executor (with the support of the other beneficiaries) argued that the wording of the Will provided him with wide discretion to determine how and when to convert the estate (as well as giving him the discretion to postpone conversion).  He further argued that the court should not interfere with the discretion given to him under the Will unless it was clear that the executor had breached his duties.    

Justice Beames, the trial judge, determined that, pursuant to the Will, the executor had been given broad discretion to postpone converting the assets of the estate and so long as the discretion was exercised in a way that was honest, reasonable, intelligent, and in good faith the executor was behaving appropriately. 

While Beames J. found that the executor was not entitled to postpone converting the land indefinitely, she also found that this was not the case here – the executor had provided evidence that he did intend to convert the estate but had decided that it was not yet advantageous to do so. 

Accordingly, Beames J. dismissed the plaintiff’s claim and ordered that costs be paid from the plaintiff’s share of the estate. 

What Happens When Limitation Periods Conflict?

The recent case of Whorpole v. Echelon General Insurance raised the issue of how to interpret a conflict between a limitation period in the Trustee Act relating to claims by a deceased’s executors and other limitation periods that may apply to the claims. 

In this case, the deceased had been killed in an automobile accident and just less than two years after her death her executor commenced an action against the deceased’s insurer.  The insurer brought a motion for summary judgment arguing that the claim was statute barred because the Insurance Act provided that claims of this nature must be commenced within a year. 

S. 259.1 of the Insurance Act provides that a proceeding against an insurer regarding loss/ damage to an automobile or its contents must be brought within a year of the loss/damage occurring.  However, s. 38 of the Trustee Act gives a deceased’s executor the right to maintain an action for tort or injuries to the person or property of the deceased and provides for a limitation period of two years from the deceased’s death. 

The plaintiff’s counsel argued that a claim against an insurer in regard to loss/damage to an automobile/its contents constituted a claim for injuries to the property of the deceased as contemplated by s. 38 of the Trustee Act and that the limitation period found in s. 38 of the Trustee Act overrode the limitation period set out in the Insurance Act.    

Justice Heeney, the motion judge, noted that neither the plaintiff’s counsel nor that of the defendant had submitted case law for or against this interpretation.  In fact, Heeney J. noted that there didn’t appear to be any case law at all on this issue. 

In examining the point of law, Heeney J. found it would make a lot of sense that s. 38 of the Trustee Act operated to extend any limitation period that would have otherwise applied to the deceased and found that if s. 38 did not do so then the section could potentially be rendered meaningless. 

Ultimately, Heeney J. declined to make any “new law” on the issue and instead found that the plaintiff’s claim could proceed for other reasons he set out in his decision. 

Worried About Being an Executor? Then Buy Insurance!

I recently came across the website for ERAssure, an Ontario-based company which bills itself as the “only errors and omissions insurance available for estate trustees.”  The purpose of the insurance is to insure executors from personal liability and legal fees that might arise as a result of their negligent administration of an estate.

The coverage territory in Canada and the insurance will cover estates with a value of up to $5 million.  The premiums for the policy will depend on the size of the estate and the extent of the coverage.  While the policy will cover most negligent acts by an executor, there are limits – fraudulent, dishonest, and malicious acts are excluded from coverage. 

The policy is available for estates with more than one executor.  However, it must cover all of them – and it will not cover cross-claims between executors.  

It’s notable that an executor can’t purchase a policy directly.  Instead, law firms have to register with ERAssure and then apply for coverage for an executor client.  However, the website specifies that the company waives any right to subrogation against the estate solicitor, provided that the lawyer wasn’t involved in fraud or disciplined by the law society in relation to the matter and cooperates in the investigation of the claim.  I would be interested to know many lawyers have registered with this service.

I noticed that in a couple of places on the ERAssure website, it says that executors can usually pay for a policy of this nature from the estate assets. Personally, I would warn an executor against doing that.  Given the purpose of the policy is to insure the executor from personal liability for negligence, I think it would be difficult to justify why it is properly an expense of the estate. 

Some Taxing Issues Surrounding Executor's Compensation

The trusts and estates section of the Ontario Bar Association has a monthly “brown bag lunch” where estates and trusts lawyers in the province discuss various estate-related issues.  At yesterday’s lunch, a topic discussed was the tax rules relating to executor’s compensation. 

Most estates and trusts lawyers will be aware of the Canada Revenue Agency’s position that executor’s fees are to be treated as either income from office, employment, or business (depending on whether the executor acts in that capacity in the regular course of business).  In other words, the compensation received must be included in the executor’s income for the year and will be taxed accordingly. 

The issue of how the income is treated is of some importance – in situations where the income is from a business, the deductions allowable will be far more extensive than if the compensation is treated as income from employment or an office.

It is also important to consider the application of s. 153(1) of the Income Tax Act.  It provides that when a taxpayer’s income is from employment or an office, the person paying the income (in the context of an estate, this would be the executors) must withhold the amounts set out in the Income Tax Regulations.  When the executor is an employee the compensation received will be subject to CPP (and, in some circumstances, EI). 

It is important that any executor who wishes to receive compensation ensures that she is aware of the associated tax obligations and what amounts must be withheld.  It will often be prudent to seek advice from an accountant because confusion about tax liability is always best avoided - in situations where the appropriate amount is not withheld and remitted, the executors of an estate can become liable for interest, penalties, and the amount owing.  

Considering the Duty to Disclose in the Pension Context

The recent decision in Pryden v. Swiss Reinsurance Company considers the circumstances under which a trustee is obligated to disclose information to a beneficiary and, in particular, the application of the joint interest principle.

The case involved a class proceeding over a pension plan (which is a form of business trust) and specifically whether surplus assets attributable to the wind up of a company pension plan belonged to the class members (who were former employees of the company).  An issue raised was whether the respondent (who had employed the class members) had improperly amended the plan so as to recover surplus contributions.

The applicant brought a motion seeking the production of documents contained in the files of the law firm who had represented the company at the time the plan had been amended. She argued that she was joint in interest with the respondent (the employer) and, as such, no privilege attached to the files. 

The joint interest principle provides that when a lawyer’s advice is obtained for the administration of a trust or estate, there is no privilege since the advice is obtained for the interests of the beneficiaries and the trustees. There is a shared interest between trustees and beneficiaries because trustees have an obligation to act in the beneficiaries’ best interests and, accordingly, any legal advice obtained must be to further those interests. The court has previously held that the principle applies in the context of pension law.    

The respondent argued that there was no joint interest because if the law firm in question had given advice about the amendment it was to the company, not to the trustees of the plan. 

Master Glustein agreed with the respondent.  He pointed to the distinction between being a plan sponsor (i.e. the employer) and being the plan administrator (i.e. the trustee).  A plan sponsor does not owe trustee-like obligations to the plan members. If an employer in its capacity as plan sponsor (and not as plan administrator) obtains legal advice regarding the plan then it is not subject to the joint interest principle.  Here, Master Glustein found that it was clear the legal advice was provided to the company as plan sponsor, not to the trustees, and the joint interest principle did not apply.    

When Should the Court Approve a Sale by an Executor?

The recent decision of Jochem v. MacPherson addresses the circumstances under which the court should approve a sale transaction made by an executor. 

By way of background, the applicant was one of four executors of the deceased’s estate.  The other three executors were the applicant’s children. The applicant, as an executor of the estate, accepted an offer to sell shares the estate held in a privately-owned company to a corporation owned by her son (who was also an executor). 

The applicant then brought an application seeking a declaration that she had acted within her discretion and in accordance with her fiduciary duties when accepting the offer and an order approving the transaction. 

Justice Hoy set out the test that the court should apply when determining whether to approve a sale transaction.  Specifically, the court must be satisfied that the sale price is the “best which can be obtained” and that the sale is in the best interests of the beneficiaries.  In seeking court approval, the trustee has an obligation to obtain and put before the court all the material appropriate to allow the court to make the determination sought. 

In this situation, Hoy J. had significant concerns about the sale of the shares, including the following:

  • The applicant did not consult the other executors about the selection of the valuator of the shares or the parameters of the valuation;
  • A number of the valuator’s underlying assumptions appeared questionable;
  • The valuation was a “limited exercise” and the information used appeared to have been received, in part, from the prospective purchaser of the shares;   
  • No attempts had been made to sell the shares on the open market and alternate purchasers had not been sought; and
  • The other executors were neither consulted with nor informed of any discussions regarding the sale.

While the proposed purchase price was the appraised value of the shares, given the limitations of the valuation and the material before the court, Hoy J. was not persuaded that the applicant was acting in accordance with her fiduciary duty.  She was also unconvinced that the offer was the best price that could be obtained.  As a result, Hoy J. declined to approve the sale of the shares.  

The "When, Who, and How" of Replacing an Executor

A couple of months back I blogged on the Court of Appeal’s decision in Gonder v. Gonder Estate, which found a court could only remove a trustee without appointing a replacement when there were mechanisms in place to protect the interests of the beneficiaries.  However, when a trustee is removed, resigns, or dies, it is usually preferable to appoint a replacement.    

When determining whether a new trustee is necessary, the first thing to do is to read the will (or trust agreement, as the case may be).  In circumstances where there are multiple trustees, the will may provide for the minimum number who must be acting.  Sometimes, when a trustee resigns or is removed, there are still enough remaining trustees that the minimum number is met, meaning the appointment of a new trustee is unnecessary.

If it becomes clear that a new trustee is necessary, the will should be reviewed to determine whether an alternate has been named.  If one has, then he or she is entitled to the appointment.  If no alternate has been named, and the trustee being replaced has died, the will of the deceased trustee should be reviewed to determine whether he or she nominated a replacement – s. 4 of the Trustee Act (the “Act”) permits the last surviving or sole trustee to appoint a successor by will. 

If no one has been named, then a new trustee is necessary – in some circumstances, it will be appropriate for one of the beneficiaries to be appointed; in others it might be preferable to seek the appointment of a trust company or professional, such as a lawyer or an accountant.

When it comes to actually appointing a new trustee, s. 3 of the Act provides for certain circumstances where the appointment can be made in writing by the surviving trustees.  Additionally, the court has the authority to appoint a replacement pursuant to s. 5 of the Act.   

Keeping Your Estate Administration-Ready

I frequently stress to my clients the importance of keeping their affairs in order. While this means keeping an up-to-date will there is much more to it than that.

The National Post recently ran a helpful article  on keeping your estate “administration ready” in case of your death. Here are the tips that I liked best:

1. Ensure your executors are up to the task

Selecting trustworthy executors is important, but there’s more to the choice than trustworthiness. Administering an estate can be complicated, time consuming, and stressful, particularly when the estate is complex. It is important that the executors have the knowledge and time necessary to administer the estate.

2. Notify the executors that they’ve been named and advise them of the contents of the will

I have seen numerous occasions where the first time an executor learns of his appointment is after the death of the testator. This can cause big problems – especially if the executor renounces the appointment and no alternate has been named.

Explaining the terms of your will to your named executors is also a good idea – it will be easier for them to communicate with the beneficiaries and determine how to make any necessary discretionary decisions.

3. Brief the main adult beneficiaries about the terms of your will

Estate litigation can occur when a beneficiary is unpleasantly surprised by the terms of a will. Being upfront with the beneficiaries during your life can help to stave off the shock and hurt feelings that can lead to infighting and litigation after your death.

4. Keep financial records in order

I always recommend that clients create (and keep updated) a list of assets, such as bank accounts and investments, and where those assets are located. Copies of insurance policies, other beneficiary designations, recent tax returns, and important financial records should also be kept in one place.

This will help to avoid the administration of your estate being delayed as executors search for assets or, even worse, certain assets never being recovered.

While it’s never possible to guarantee a smooth estate administration, the above suggestions will certainly make your executors’ lives easier.

Setting Aside an Unopposed Judgment Passing Accounts

The Superior Court of Justice’s recent decision in Re Estate of Assunta Marino provides guidance on what test the court should apply when setting aside an unopposed judgment passing accounts. 

By way of background, an executor had filed an application to pass accounts.  Rule 74.18 of the Rules of Civil Procedure provides that any notices of objection to accounts must be filed at least 20 days prior to the return date of the application; otherwise the executor is entitled to obtain unopposed judgment. 

One of the beneficiaries retained counsel to review the accounts but the 20 day deadline was missed and an unopposed judgment was issued.  The beneficiary brought a motion to set aside the judgment and obtain leave to file a notice of objection to the accounts. 

Brown J. found that, in the circumstances, the test to be used in determining whether the judgment passing accounts should be set aside was the same as the test used when determining whether default judgment should be set aside on an action when it is obtained by a defendant’s failure to file a notice of defense. 

Specifically, the questions that Brown J. determined that the court should consider were:

  1. Was the motion brought without delay?
  2. Were the circumstances giving rise to the default adequately explained?
  3. Did the beneficiary have an arguable case – could he demonstrate he had arguable objections to the executor’s accounts?
  4. Did the interests of justice favour setting aside the judgment?

Applying the above principles, Brown J. determined that setting aside the judgment was warranted although he found it was a “close call”.  He found that the moving party was prudent in bringing the motion in a timely manner.  With respect to the circumstances, the beneficiary’s counsel had explained that it was through the counsel’s inadvertence that the notice of objection was not filed, rather than the beneficiary not intending to file one – and Brown J. found this explanation adequate. 

He also found that the beneficiary had arguable objections given the accounts indicated unusual expenditures had been made by the executor.  As to the interests of justice, while Brown J wasn’t impressed that the deadline had been missed and believed that there should be protection for litigants, such as the executor, who follow appropriate court procedure, he also found that as the beneficiary had raised arguable objections, they should be considered. 

Duties of an Estate Trustee: Administering an Estate within the 'Executor's Year'

A question I frequently get asked by clients is “how long should the administration of an estate take?” – often, beneficiaries, wanting to receive their inheritance, take to wondering, “what’s taking so long?” 

There exists at common law a “rule of thumb”, which provides that the executors of an estate have twelve months from the deceased’s death to call in the assets of the estate, pay debts and liabilities, and distribute the assets remaining to the beneficiaries in accordance with the provisions of the deceased’s will.  The rule exists as a reminder to executors that they can't unduly delay the adminitration of an estate - while also allowing them time to focus on the task at hand without worrying about having to make distributions to beneficiaries. 

If this is not accomplished within a year, the beneficiaries then have the right to demand interest on their gifts and can call upon the executors to explain why the administration of the estate is not complete. The Supreme Court of Prince Edward Island’s decision in Currie v. Currie & Ors provides a useful discussion of the rule. 

The rule isn’t completely inflexible - there are certainly circumstances where the administration of an estate will take longer than a year, such as when there is litigation involving the estate or the assets prove difficult to realize.  In addition, there are often clauses in a will which give the executors wide latitude in determining how and when to realize assets – and these can be relied on by executors who have been prudent in their actions when explaining why the administration of the estate is ongoing after a year.

In situations where it appears that, though no fault of the executors, the administration of the estate will continue past the one-year mark, I always encourage to executors to, where practicable, make an interim distribution to the beneficiaries – I find that beneficiaries who have received something are more inclined to be patient waiting for the rest of their inheritance. 

In addition, it is very important for executors to communicate with beneficiaries about the status of the administration of an estate.  I have seen numerous situations where executors, figuring that since they’re the ones in charge, believe that they have no obligation to provide explanations regarding their administration of the estate and beneficiaries, who would otherwise have shown patience, become suspicious of the executors when the administration of the estate becomes prolonged and the beneficiaries have no idea why.     

Can an Executor be Removed with No Replacement Appointed? Court of Appeal Says "Sometimes"

I recently came across the Ontario Court of Appeal’s decision in Gonder v. Gonder Estate, from March of this year.  In it, the court considers a very interesting issue: does the court have the discretion to remove a trustee without appointing a replacement and, if so, when should that discretion be exercised? 

By way of background, an individual ("the testatrix") left a will naming her sister and brother-in-law as her executors.  After the testatrix’s death, her brother commenced a claim against her estate. 

The executors later brought a motion under s. 37 of the Trustee Act seeking their removal on the basis of, amongst other things, financial stress, ill health, and other personal circumstances.  They did not seek the appointment of a replacement executor.  The testatrix’s brother opposed the motion, arguing that in the absence of a successor trustee, the current executors were “stuck with the job.” 

The motions judge ordered that the executors be removed and held that requiring them to continue acting would cause substantial hardship on them.  He further decided that s. 37 of the Trustee Act did not require the court to appoint a successor when removing an executor and found that an individual could not be compelled to act as a trustee.   

The testatrix’s brother appealed, arguing that the motions judge erred in removing the executors, leaving the estate with no personal representative. 

The Court of Appeal allowed the appeal.  It found that the motions judge was correct that the court does have the discretion to remove a trustee without appointing a successor.  However, this was to occur only in the rarest of circumstances.  It also found that when leaving an estate “trustee-less”, the court had the obligation to ensure “the proper administration of the estate in the best interest of the beneficiaries”.  That is, an alternate mode of administration must be implemented such that the estate assets will be maintained and the beneficiaries’ interests will be protected.

The court went on to conclude that while the circumstances were such that the removal of the executors was warranted, the motions judge erred in failing to ensure that the proper administration of the estate could proceed.  It ordered the Superior Court to reconsider the executors’ removal and, if they were to be removed, to ensure the estate and its beneficiaries would be protected.