An executor plays a crucial role in settling estates and carrying out the last will of the deceased. This role includes managing assets, handling debts and ensuring that the deceased's wishes are respected. Executors are usually entrusted with great responsibility. This can lead to situations where it is necessary to discharge them. In this article, we will discuss some of the circumstances in which an executor can be dismissed. Want to know more? Read the full post here.
An executor is someone appointed in a will by the deceased to manage and direct the settlement of his or her estate. The appointment of an executor is done through a specific provision in the will itself. In the will, the deceased names the person or persons he or she wishes to appoint as executor. Sometimes this is an independent outsider, such as a notary or a financial adviser, but often it is one of the heirs. The deceased usually also specifies the tasks and responsibilities to be fulfilled by the executor, but the law assigns the executor a fixed set of tasks with corresponding powers. In the will, these duties and powers can be extended or, on the contrary, limited.
The executor's duties end when he has completed his work. He is then obliged to render an account to the heirs. Nevertheless, some heirs may feel that they lose control over the settlement of the estate if an executor is appointed. They may have to leave decisions to the executor even if they disagree with them. Conflicts may arise between heirs and the executor if there are disagreements about the approach or decisions taken by the executor. So how do the heirs get rid of the executor? Or how does the executor get rid of his duties?
Mediation or court intervention
When there is distrust of the appointed executor, mediation can offer a solution. Under the guidance of a specialised estate mediator, the extent to which and how the relationship can be restored can be examined. It is also common for an executor to prefer to resign from his position after hearing criticism himself. In such a case, if there is no provision in the will that he has the right to resign voluntarily, the executor can apply to the subdistrict court for his resignation. A request for resignation submitted by the executor himself should always be granted. The underlying reason is that no one is served by an unwilling executor.
However, if another interested party submits a request for dismissal to the subdistrict court, for example one of the heirs, that request will always have to be based on " compelling reasons ". There are " compelling reasons" to dismiss a testamentary executor when there are serious and demonstrable grounds justifying the termination of the executor's position. These reasons must be substantial and substantial enough to call into question the trust, integrity or ability of the executor to properly perform his or her duties. Some of the possible situations where there may be " compelling reasons" as referred to here are:
- Incompetence or negligence
One of the most obvious reasons for dismissing an executor is incompetence or negligence in the performance of his duties. If the executor is unable to carry out his or her responsibilities adequately and efficiently, this can lead to delays, financial losses and even damage to the estate. This may include failing to file necessary documents in a timely manner, ignoring creditors or failing to act in the best interests of the estate.
- Conflict of interest
An executor must act in the best interests of both the estate and the heirs. If there are conflicts of interest where the executor places personal interests above those of the estate, this can lead to partiality and loss of trust. For example, if the executor is also an heir and puts his or her own interests above those of other heirs, this can lead to serious divisions and legal action.
- Violation of the law or the will
An executor has a duty to act within the limits of the law and the provisions of the will. If the executor violates these obligations, such as ignoring specific wishes of the deceased as set out in the will, this may result in a legitimate reason to justify the dismissal of the executor.
- Lack of cooperation with beneficiaries
An executor must communicate and cooperate openly with heirs, creditors and other beneficiaries of the estate. If the executor refuses to provide information, ignores relevant parties or creates a strained relationship with them, this can lead to the loss of trust and the need to appoint a new executor.
- Unreasonable delays or obstructions
The executor should not cause unreasonable delays in settling the estate and should not refuse to cooperate with affected parties or create unnecessary obstacles that hinder the execution of the deceased's last will.
However, not every reproach needs to immediately lead the subdistrict court to also consider it a sufficient " compelling reason" for dismissal. Whether and when there is a compelling reason for dismissal depends again and again on all the circumstances of the case.
Legal advice:
Dismissing an executor is a serious step that requires careful consideration, given its impact on the handling of an estate. It is important to have clearly demonstrable grounds and seek legal advice from a specialist inheritance lawyer before proceeding with a request for dismissal. In cases where an executor fails to perform his or her duties properly, violates the law or harms the interests of the estate, heirs can take steps to have a new executor appointed and ensure that the deceased's last will is carried out appropriately. Do you have any questions or would like advice? Then contact specialised inheritance law lawyer and estate mediator Ms Angelique van den Eshoff of SPEE lawyers & mediation.