Appointing an executor is not difficult, you just need to have all the necessary documents in place to become an estate manager. (To read the article on appointing an estate manager, click here.) The problem arises when, after becoming an estate manager, they refuse to fulfill their duties with integrity. They may embezzle, cheat on the inheritance, or deceive their own siblings. In such cases, what can other heirs do?
In reality, there are several actions that can be taken, including filing civil or criminal lawsuits, among many others. However, today I will share one process to “stop” these deceitful executors from further deceiving us: withdrawing the executor.
Table of Contents
- Reasons for withdrawing the executor.
- Executor does not do their job.
- Executor engaging in fraud or other unjustifiable behavior.
- Who can withdraw the executor?
- Can we appoint ourselves instead?
- When should we start to withdraw?
Reasons for withdrawing the executor
Our laws establish the process of becoming the executor to provide “services” to each individual heir, rather than to seize assets for personal gain or to gain an advantage over other heirs. According to our laws, an estate manager is considered a “representative”.
Therefore, it must be possible to change or withdraw the executor. However, the law requires that the process of withdrawal be carried out through the court to have a clear court order going forward. The reasons for withdrawal are specified in Article 1727 of the Civil and Commercial Code, which states :
“Any person with a legitimate interest can request the court to order the withdrawal of an estate manager if the estate manager neglects their duties or for any other justifiable reason. However, such a request must be made before the distribution of the estate is completed.Even if someone has already assumed the position, an estate manager may resign for valid reasons, but they must obtain permission from the court.”
Executor does not do their job
Executor engaging in fraud or other unjustifiable behavior
If an estate manager is engaged in fraudulent activities or exhibits other behavior that is deemed justifiable, the law provides an opening for judges or the court to consider the actual circumstances and determine whether it is appropriate for them to continue serving as the estate manager. Typically, this involves instances of misconduct, failure to act in good faith towards the heirs, or engaging in illegal activities. The court must consider whether allowing the executor to continue in their role would cause definite harm to the heirs.
This provision grants the court broad discretion to interpret the situation. Therefore, if you are unsure about the specific grounds for withdrawing the executor, you can refer to the general condition of “justifiable reasons for withdrawal.” This allows the court to assess the situation and make a determination based on what is deemed appropriate.
Who can withdraw the executor?
Indeed, the law stipulates that only “persons with a legitimate interest” have the right to file a petition with the court to withdraw an estate manager. It is not open to just anyone to make such a claim.
The law does not specify individuals or positions specifically but rather broadly states that we must have a legitimate interest. This can include being an heir entitled to a portion of the estate, having a declared interest in the inheritance, or being a creditor awaiting payment from the estate, among other possibilities.
In simpler terms, if the estate manager’s poor performance, negligence, or misconduct causes us distress or harm in relation to the inheritance, we have the right to petition the court to withdraw that person from their position of authority.
Can we appoint ourselves instead?
That’s correct. Usually, when requesting the withdrawal of an estate manager, the request is often made to appoint oneself or someone else as the new estate manager. Otherwise, if no replacement is appointed, the position of the estate manager will be vacant, which would prevent anyone from carrying out the distribution and allocation of shares or handling debts related to the estate, as well as providing services to all the heirs.
When should we start to withdraw?
The withdrawal of an estate manager does not have a fixed deadline or time frame. It is important to remember that “withdrawal should occur before they have completed their tasks.” Once their tasks are completed, which includes the distribution of the estate, the responsibilities and position of the executor will automatically cease.
Therefore, if you want to address the issue of a deceitful or negligent executor, it is advisable to assess whether they have already carried out the transfers or divisions of the estate.