In what circumstances can an executor be removed?

Question

José Manuel Alburquerque · Accepted Answer

In Catalonia, only when they are guilty of wilful misconduct, that is, acting knowingly and to the detriment of the estate, or of gross negligence, which is inexcusable carelessness. It is not enough that the heirs disagree with the executor's decisions or have lost confidence in them, if the executor is acting within their powers. Removal, which means taking the office away from them, is decided by the court at the request of the heirs or others with an interest in the estate. If the problem is delay, the law provides another route, under which the executor can be served with a formal demand through a notary to finish within a set period, on pain of losing the office. The grounds The “Código Civil de Cataluña”, the Catalan Civil Code, says that an executor's office ends, among other reasons, through removal based on wilful misconduct or gross negligence. Removal may be justified, for example, by conduct such as the following: Keeping money or assets from the estate or using them for their own benefit. Concealing assets or debts, or refusing time and again to render accounts. Selling assets well below their value or to people close to them, to the detriment of the estate. Allowing assets to be lost or damaged through serious carelessness, or letting important time limits pass, such as the one for the “impuesto de sucesiones”, the Spanish inheritance tax, with surcharges for the estate. Each case depends on the evidence. The judge assesses whether there was bad faith or serious carelessness, not whether the heirs like the executor's decisions. Delay has its own remedy. The executor leaves office when the time limit they had to carry out the task expires. If the will did not set one and a year has passed since they accepted, any interested party can ask a notary or the court clerk (“letrado de la Administración de Justicia”) to require them to finish within a set period. If they do not, they lose the office and are liable for the delay. How to apply and what happens next Removal is decided by the court. Before suing, the law generally requires an attempt to reach an agreement. Whoever applies for removal must prove the executor's conduct, normally with documents, such as the bank statements for the estate's accounts, the deeds of sale or the formal demands the executor did not answer. If the court removes the executor, they must render accounts and hand over the assets of the estate that they hold. They are also liable for any loss they have caused. If there is no other executor or substitute left, any interested party can ask the court clerk or a notary to appoint a new one, with the same powers, if the clerk or notary considers it appropriate. If none is appointed, whatever remains of the task must be carried out by the heir. In most of the rest of Spain, the Spanish Civil Code (“Código civil”) also provides for the removal of the executor, which is for the court to decide, but it does not list the grounds.