Removal of an Executor from Executorship
Under the laws currently in force, no official authority is granted the right to supervise the actions of an executor. Accordingly, the executor is obliged to perform all acts assigned to them by the testator in full compliance with the will. Failure to do so renders the executor liable for compensation of damages and may result in removal from executorship.
Judicial Procedure for Reviewing a Request for Removal of an Executor
Who Is Considered an Executor?
An executor is the individual appointed by the testator, meaning the deceased, to carry out the provisions of their will. These duties may include guardianship of minor children, management of the deceased’s assets, administration and settlement of the estate, transfer of specific property, performance of religious rites, burial arrangements, or fulfillment of religious obligations. Such responsibilities may be assigned by the testator to a natural person or a legal entity.
Types of Executorship
Sequential Executorship
The testator may appoint several executors in a specific order. For example, the testator may designate one person as the first executor and provide that if this person is removed for any reason, including breach of trust, illness, incapacity, insanity, or death, another named person shall act as executor. This sequence may continue with additional individuals as designated by the testator.
Executorship with Authority to Appoint a Successor
The testator may authorize a person to select an executor after the testator’s death. This arrangement is commonly used in matters such as the management of the deceased’s property, where the executor appointed after death assumes responsibility for tasks previously handled by the testator.
Powers and Duties of the Executor
Since no statutory supervisory authority exists over the actions of an executor, the executor must strictly comply with the terms of the will. If the executor acts contrary to the will of the deceased, removal from executorship is justified, and the executor is required to compensate any resulting damages.
If an executor is removed for any of the stated reasons, the court is obligated to appoint another executor. Where the executor has been appointed by the court, replacement or substitution is not permitted unless betrayal of trust is established and proven.
Delegation of Executorship Duties to Another Person
An executor may designate a successor executor only if such authority has been granted. The successor executor acquires the rights, duties, and obligations of the former executor only upon the death of the original executor or upon their inability to perform the assigned duties.
An executor may not transfer their rights and duties to another person during their lifetime, as the personal characteristics and qualifications of the executor are an essential consideration for the testator. Delegation of executorship duties to another individual is permissible only if the testator has expressly authorized such delegation in the will.
Despite these limitations, an executor may appoint an attorney or representative to assist in carrying out their duties. However, if the testator has expressly revoked this right in the will, the executor is not permitted to appoint an attorney.
Trust Character of the Executor’s Obligations
The property of the deceased that comes into the possession of the executor is held in trust, and the executor’s possession is deemed custodial. Accordingly, the executor is considered a trustee. If the entrusted property is lost or damaged without fault and despite the exercise of due care, the executor is not liable for compensation.
Important Notes Regarding Removal of an Executor
In cases where a father appoints an executor for matters relating to his children due to a belief that the mother is not suitable for guardianship, and following the father’s death, the mother claims guardianship, the court may remove the appointed executor if it determines that the mother is qualified to assume guardianship.
If a condition upon which the executorship was contingent ceases to exist, the executor shall be removed. Should the impediment be eliminated, the executor may resume their duties.
Competent Court for Filing a Claim for Removal of an Executor
A claim for the removal of an executor falls within the jurisdiction of the Family Court. Any person with a legal interest in the will, or their legal representative, may file a request for removal of the executor before the Family Court upon payment of the prescribed court fees.
Frequently Asked Questions About Removal of an Executor
An executor is a person appointed by the testator to carry out the provisions of the will, such as guardianship of children, management of assets, administration of the estate, or fulfillment of religious obligations. The executor must act in accordance with the will and is liable for damages in case of breach.
An executor may be removed if they act contrary to the will, breach their duties, lose the required qualifications, die, or become incapable of performing their obligations. In such cases, the court appoints a new executor.
An executor may delegate duties only with the authorization of the testator and only upon death or inability to perform duties. Delegation during the executor’s lifetime without such authorization is not valid.
No. The executor holds the property in trust and is considered a trustee. If loss or damage occurs without fault and despite due care, the executor bears no liability.
The Family Court has jurisdiction, and any interested party or their legal representative may file a claim for removal.
If the executor was removed due to the loss of a specific qualification or a temporary impediment, and that impediment is later resolved, the executor may resume their duties.
An executor may appoint an attorney or representative unless the testator has expressly prohibited such appointment in the will. Who is an executor and what are their duties?
What circumstances lead to the removal of an executor?
May an executor delegate their duties to another person?
Is the executor considered the owner of the deceased’s property?
Which court has jurisdiction over the removal of an executor?
Can an executor return to the office after removal?
May an executor appoint an attorney or representative?
