The executor neither divides nor accounts: how to remove him
Last updated 2026-09-01 · Reviewed by Jaime Piñeira Pardo, registered with the ICAM bar, no. 138826
The short answer
First check whether the post has already ended. Article 904 of the Código Civil gives the executor one year from acceptance where the testator set no period, and article 910 makes the executorship end on the lapse of that term. Once it ends, article 911 returns execution of the testator's wishes to the heirs, with no need to argue about his conduct.
Your uncle died two years ago and named a friend of his as executor. That man accepted the post at the notary's office a few weeks later, took the keys to the flat and has divided nothing since. He does not answer emails, says on the phone that he is waiting for some papers and has never shown a single statement from the estate account. There are four of you, nephews and heirs, the flat is still in the deceased's name and the money is still in a bank you cannot access.
The case, in five lines
- What is brought
- Claim for removal of the executor and for the rendering of accounts, normally joined to a declaration that the executorship has ended through the lapse of the legal period.
- Before which court
- The sección civil del Tribunal de Instancia (the civil section of the first-instance court) of the deceased's last domicile, which is the body that assesses removal under article 910 of the Código Civil.
- Deadline
- The post lasts one year from acceptance if the testator set no period, under article 904, and one further year of statutory extension if the testator wished to extend it without stating for how long, under article 905. The claim for accounts does not depend on that expiry.
- Who can bring it
- The heirs, whom article 907 entitles to have the executor account to them for his task, and the legatees affected. Article 906 also allows heirs and legatees to extend the period by common agreement.
- Financial risk
- If the executor shows he was acting within time and within the powers given by the will, removal is dismissed and costs may be awarded against you. The post is unpaid unless the testator set remuneration, under article 908.
The post has almost always expired before anyone even argues about it
Article 904 of the Código Civil provides that an executor for whom the testator set no period must complete his task within one year, counted from his acceptance or from the end of any litigation brought about the validity or nullity of the will or of any of its provisions. It is a short period and almost nobody has it in mind, neither the family nor, often, the executor himself.
Article 905 governs extension with the same demand for clarity: if the testator wishes to extend the statutory period he must expressly state the length of the extension and, if he did not state it, it is understood extended by one year. Only once that extension has run may the Letrado de la Administración de Justicia or the Notary grant another for such time as is necessary, given the circumstances of the case.
Article 906 adds the private route: heirs and legatees may, by common agreement, extend the period for as long as they think necessary, but if the agreement is only by majority the extension may not exceed one year. So the date of acceptance is the first fact to establish, because whether the case is resolved by expiry rather than by conduct depends on it.
Once the period ends, executing the testator's wishes returns to the heirs
Article 910 lists the grounds on which an executorship ends: the death, incapacity, renunciation or removal of the executor, and the lapse of the term set by the testator, by law or, where applicable, by the interested parties. Expiry of the period appears there on the same footing as removal, and it requires no proof of misconduct or negligence by anyone.
Article 911 closes the mechanism: in the cases covered by the previous article, and where the post was never accepted, execution of the testator's wishes falls to the heirs. That is why many cases need not a claim for removal but a declaration that the post has ended, and from then on it is you who divide the estate, sign the deed and unblock the accounts.
Rendering accounts is not a favour: it is the duty in article 907
Article 907 states that executors must account to the heirs for their task, and adds that if they were appointed not to hand the assets to specific heirs but to apply or distribute them as the testator directed in the cases the law allows, they shall render their accounts to the court. And it closes with a sentence that removes any doubt: any provision by the testator contrary to this article shall be void.
In other words, neither can the will dispense with the duty to account, nor can the executor take shelter in the trust the deceased placed in him. A formal written request for accounts, with a date, is moreover the document that later supports the claim: it proves that he was called upon, that he did not answer and since when, which is exactly what the court needs to see.
The executor has only the powers in the will or those in article 902
Article 901 provides that executors shall have all the powers the testator expressly conferred on them that are not contrary to law. If the will is silent, article 902 sets out four powers and only four: to arrange and pay for the funeral and religious services, to pay cash legacies with the heir's approval, to oversee execution of the will and defend its validity in and out of court, and to take precautions to preserve and safeguard the assets with the involvement of the heirs present.
That list does not include the power to divide the estate. An executor who keeps the keys, manages the accounts and decides on his own how the estate is shared out is acting outside article 902 if the will did not expressly grant him those functions. The first reading of the case is always the reading of the title: what the will says he may do, and what he is actually doing.
Two further limits are worth bearing in mind. Article 909 forbids the executor from delegating the post unless the testator expressly authorised it, so handing everything to a third party without cover is a significant irregularity. And article 908 recalls that the post is unpaid unless the testator set remuneration, without prejudice to what is due to him for division work or other professional tasks.
Removal requires a ground and a court ruling, so it is asked for in the alternative
Article 910 ends with a sentence that marks the procedural route: removal must be assessed by the court. It is not an agreement the heirs can reach among themselves, nor something a letter to the executor can resolve. It has to be taken before the sección civil del Tribunal de Instancia and the ground has to be proved, usually prolonged inactivity, failure to render accounts or acting beyond the powers granted.
That is why the claim is framed with two requests. The main one, that the executorship be declared ended by the lapse of the term in article 904 and that article 911 apply, which requires no proof of fault. The alternative one, removal for cause, in case a valid extension is shown to have kept the post alive. With that structure, the case does not hang on a single reading of the calendar.
How we run the case, step by step
- 1
Read the will and measure the actual powers
We obtain the authorised copy and compare the executorship clause with the list in article 902. If the testator did not expressly widen the powers, anything beyond those four is action without cover and serves as a ground.
- 2
Establish the exact date the post was accepted
We trace the notarial record or the document in which he accepted, or we prove the tacit acceptance under article 898 through his not having excused himself within six days. The expiry of the year in article 904 depends on that date.
- 3
Formally require him in writing to render accounts
A request with verifiable proof of delivery is sent, relying on article 907 and asking for a breakdown of income, expenses and the state of the assets. His silence is recorded and becomes the central piece of the later claim.
- 4
Sue for the ending of the post and, in the alternative, for removal
The claim is filed before the sección civil del Tribunal de Instancia and asks for a declaration that the executorship has ended through lapse of the term, applying article 911, and in the alternative for removal for cause together with the rendering of accounts.
- 5
Recover the assets and the documentation
Once the judgment is final, delivery of keys, title documents and balances is demanded, and it is shown to the bank and to the registry that execution of the testator's wishes now falls to the heirs under article 911.
- 6
Divide, and if any heir blocks, divide judicially
With control recovered, the deed of division is signed. If a co-heir appears who will not sign, judicial division of the estate is applied for so that the division is completed without depending on his will.
The evidence that decides the case
- The authorised copy of the will, with the executorship clause and the powers the testator granted him.
- The record or document proving the date the post was accepted, from which the year in article 904 runs.
- The formal request for accounts with proof of delivery and the absence of any reply, with their dates.
- The land registry extracts showing that the assets are still registered in the deceased's name.
- The statements of the estate account and the receipts for any payments the executor has made.
- The correspondence with the executor over these years, which documents the inactivity and how long it has lasted.
What closes the door
- Arguing about the executor's conduct without first establishing the date of acceptance. Article 904 may have ended the post long ago, and then nothing further needs to be proved.
- Accepting extensions by word of mouth. Article 905 requires the testator to state the extension expressly and article 906 limits to one year an extension agreed only by a majority of the interested parties.
- Assuming the executor may divide the estate. That power is not on the list in article 902 and requires an express grant by the testator under article 901.
- Believing the will can excuse him from rendering accounts. Article 907 declares void any provision by the testator contrary to that duty.
- Agreeing on removal among the heirs and notifying him of it. Article 910 requires removal to be assessed by the court, so without a court ruling the post remains in place.
The law that applies
- Art. 904 CC. An executor for whom the testator set no period must complete his task within one year, counted from his acceptance or from the end of any litigation brought about the validity or nullity of the will or of any of its provisions. BOE-A-1889-4763
- Art. 905 CC. To extend the statutory period the testator must expressly state the extension; if he did not, it is understood extended by one year, and only afterwards may the Letrado de la Administración de Justicia or the Notary grant another for such time as is necessary. BOE-A-1889-4763
- Art. 907 CC. Executors must account to the heirs for their task and, if appointed to apply or distribute the assets as the testator directed, they shall render accounts to the court. Any provision by the testator contrary to this article is void. BOE-A-1889-4763
- Art. 910 CC. An executorship ends by the death, incapacity, renunciation or removal of the executor and by the lapse of the term set by the testator, by law or by the interested parties. Removal must be assessed by the court. BOE-A-1889-4763
- Art. 911 CC. In the cases covered by the previous article, and where the executor never accepted the post, execution of the testator's wishes falls to the heirs. BOE-A-1889-4763
- Art. 902 CC. If the testator did not specify the powers, the executor may only arrange and pay for the funeral and religious services, pay cash legacies with the heir's approval, oversee the carrying out of the will and defend its validity, and safeguard the assets with the involvement of the heirs present. BOE-A-1889-4763
Each article checked against the consolidated text published in the BOE (the Spanish official gazette).
Frequently asked questions
How long does the executor really have to divide the estate?
If the testator set no period, one year from his acceptance, under article 904. That period may be extended if the testator expressly stated an extension or, where he wished to extend it without saying for how long, by one further year under article 905. Heirs and legatees may also extend it by common agreement under article 906, but where there is only a majority the limit is one year.
He refuses to show us the accounts and says my uncle trusted him. Can he refuse?
No. Article 907 requires executors to account to the heirs for their task and declares void any provision by the testator contrary to that article. Neither the deceased's personal trust nor a clause in the will excuses him. What works is to require him in writing with verifiable proof of delivery, because his documented silence later becomes the strongest evidence in the claim.
Can we remove him ourselves as heirs, without going to court?
No. Article 910 provides that removal must be assessed by the court, so an agreement among the heirs does not strip him of the post. What you can do instead is rely on the expiry of the period, because that same article makes the executorship end on the lapse of the term and article 911 then returns execution of the testator's wishes to the heirs.
The executor has been charging for his work. Was he entitled to?
Article 908 provides that the post is unpaid, although it allows the testator to set whatever remuneration he thinks fit and preserves what is due to the executor for division work or other professional tasks. If the will set no remuneration and he has been paying himself out of the estate, that use of funds must be justified in the accounting required by article 907.
He has handed everything over to somebody else. Is he allowed to?
Article 909 provides that the executor may not delegate the post unless the testator expressly authorised it. Engaging specific help for practical tasks is not the same as delegating the whole task, and that is the boundary in dispute. If in practice the person who decides, manages and signs is a third party with no cover in the will, that conduct is a ground taken to the claim.
This guide explains how the action works in general. It does not replace the study of your own case: deadlines depend on when things happened and on what you have done since.