Arranging the estate: Can you remove an executor?

The inheritance is here.

Arranging the estate: Can you remove an executor?

The inheritance is here. But the survivors can't get along with the executor? This happens and can be a problem. Because you can't get rid of him that easily.

When the bereaved read the will of a deceased relative, they are sometimes flabbergasted. Because it is not uncommon for the testator to appoint an executor - of which nobody knew anything. But what to do if there is a human conflict between the heir and the executor?

An executor is responsible for ensuring that the inheritance of a deceased person is treated in their best interest. He should enforce certain requirements, possibly against the will of the heirs. For example, that a house remains in the family and is not sold. Only: It doesn't always work harmoniously. Sometimes heirs just want to get rid of the executor.

But it's not that easy. "Emotional sensitivities are not enough to depose an executor," says Jan Bittler, a specialist lawyer for inheritance law. For this to happen, the executor must have made serious mistakes. The probate court always has the last word on a possible dismissal.

The German Civil Code specifically states: "The probate court can dismiss the executor at the request of one of the parties involved if there is an important reason; such a reason is, in particular, a gross breach of duty or an inability to properly manage the business."

According to specialist lawyer Eberhard Rott, there is a gross breach of duty, for example, if the executor has demonstrably embezzled funds. Or, if he disregarded instructions in the will, simply did not act or acted out of pure self-interest.

"An inability to manage the business properly can be shown, for example, by the fact that no list of inheritances has been created and maintained," says Rott. Or that the executor of the will did not fulfill his obligation to inform the surviving dependents.

If the executor is ill for a long period of time or is unable to take care of the estate for professional or private reasons, the chances of success of an application for dismissal are also good.

However, slight breaches of duty are not sufficient to remove an executor from his office. "It is up to the applicant to prove that the executor intentionally or negligently violated his obligations," says Jan Bittler. The probate court examines whether this is the case.

But what happens if the probate court really removes the executor? "Whether the court appoints a new executor depends on the circumstances," says Eberhard Rott. A substitute person may be designated in the will in the event that the executor - for whatever reason - is unavailable.

If nothing is specified, the court must interpret what would be in the interests of the deceased. "There will definitely be a new executor if the heirs are still minors," says Rott. Or, if the court finds the heirs too inexperienced, for example because of their age, to take care of the estate themselves.

The same applies to a disabled heir. "Especially in such a case, an executor can be extremely important," says Bittler. This has the following background: To ensure that the inheritance of the handicapped child does not go completely to the state, which has to pay for the home and care costs, the testator must have drawn up a disability testament. So it is not possible for the state to demand the inheritance.

Bittler: "The executor then administers the inheritance for the disabled child and uses the proceeds to pay for a nice trip, for example."

Now the executor is not to blame for anything. He or she fulfills the tasks and duties properly - but one or the other survivor simply does not agree with the person. And now? "In such cases, it makes sense to develop a strategy together with a lawyer," says lawyer Eberhard Rott.

One option could be to refuse the inheritance and only secure the compulsory portion. "Although this means that you only get half of the inheritance, you can detach yourself from the executor," says Rott.

Another option is to contest the will, raising the question of whether the testator may have made a mistake in appointing an executor.

What also works to get rid of the executor: "Sell the inheritance," says Rott. However, this is only possible if the testator has not ruled out precisely this variant in his or her will.

(This article was first published on Wednesday, May 25, 2022.)

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