Can a Succession Representative be Removed in Louisiana? Any party seeking to remove a succession representative in Louisiana must prove by convincing evidence that the succession representative breached one or more his or her general fiduciary duties to the succession or the existence of one of the grounds for removal, such as disqualification, incapability of discharging the duties of office, mismanagement of the estate or failure to perform any duty imposed by law or court order.
It is only after such a showing is made that the court’s power to remove the representative comes into existence. Thereafter, the trial court is not required to remove the representative but is vested with discretion in determining whether removal is appropriate under the facts of the particular case. So for most violations by the succession representative, Louisiana law does not mandate removal of the succession representative but instead provides the grounds for which the court has the discretionary power to remove the representative.
General Fiduciary Duties of Louisiana Succession Representatives
Louisiana succession representatives have explicit and implicit duties, which include fiduciary duties to the succession, by which they are required to abide. Essentially, succession representatives are fiduciaries to the succession; they must collect, preserve and manage the property of the succession in accordance with the law, and they must act as prudent administrators. Louisiana succession representatives are personally responsible for all damages resulting from their failure to act as prudent administrators.
A nonresident succession representative may execute a power of attorney appointing a resident of the state to represent him in all acts of his administration. A resident succession representative who will be absent from the state temporarily may similarly appoint an agent to act for him during his absence. In either case, the power of attorney appointing the agent shall be filed in the record of the succession proceeding.
Subject to any restrictions provided in a valid testament of a decedent or an order of a court of competent jurisdiction, a succession representative shall have the power and authority to take control of, handle, conduct, continue, distribute, or terminate any digital account of the decedent.
Any person that electronically stores, maintains, manages, controls, operates, or administers the digital accounts of a decedent shall transfer, deliver, or provide a succession representative access or possession of any digital account of a decedent within thirty days after receipt of letters testamentary, letters of administration, or letters of independent administration evidencing the appointment of the succession representative. A succession representative shall be considered an authorized user with the lawful consent of the decedent for purposes of accessing or possessing the decedent’s digital accounts.
The Duty of a Succession Representative to Close a Succession
It is the duty of a succession representative to close a succession as soon as advisable. A succession representative who does not act is subject to removal. A succession representative who fails to act diligently, conscientiously, and promptly in the discharge of his or her duties as succession representative is subject to discharge.
Additionally, sometimes Louisiana courts will rule that a prolonged delay in opening a succession or promptly closing a succession suggests that an administration is not even needed. And if that is the case, then the succession representative can be removed or discharged, and the succession concluded. Thus a Louisiana court could find that there would be no reason why the heirs should not be sent into possession of the succession property, to manage or dispose of the property as they see fit.
Revocation of Appointment for Failure to Timely Qualify as Succession Representative in Louisiana
If a person appointed or confirmed as succession representative fails to qualify for the office within ten days after his appointment or confirmation, on its own motion or on motion of any interested person, the court may revoke the appointment or confirmation and appoint another qualified person to the office forthwith.
The delay allowed herein for qualification may be extended by the court for good cause shown. Also, revocation of appointment is within the trial court’s discretion.
Removal of Succession Representative from Office in Louisiana
Louisiana courts may remove any succession representative who is or has become disqualified, has become incapable of discharging the duties of his office, has mismanaged the estate, has failed to perform any duty imposed by law or by order of the court, has ceased to be a domiciliary of the state without appointing an agent of service when required, or has failed to give notice of his application for appointment when required.
A Louisiana court on its own motion may, and on motion of any interested party shall, order the succession representative sought to be removed to show cause why he should not be removed from office. The removal of a succession representative from office does not invalidate any of his official acts performed prior to his removal.
Louisiana courts have generally justified the removal of a succession representative in the following circumstances:
- Breach of fiduciary duty;
- Failing to file an inventory or descriptive list of assets;
- Failing to file annual accounts;
- Failing to file a tableau of distribution when debts are paid;
- Failing to close the succession as soon as advisable;
- Failing to properly preserve the property of the succession;
- Failing to protect and preserve special legacies;
- Failing to disclose assets;
- Out-of-state rep’s failure to appoint an agent for service of process;
- Failure to obtain court approval for action;
- Administrator superseded by executor;
- Mismanagement of the succession;
- Conflict of interest;
- Inability to manage succession;
- Imprisoned and charged with murdering the decedent;
- Evidence suggesting undue influence over testator; and
- A child reaches majority and becomes an administrator in her own right.
However, Louisiana courts have also refused to remove a succession representative in the following circumstances:
- Charging a management fee;
- Failure to post a bond;
- Failure to provide notice of action;
- Failure to obtain court approval for action;
- Failure to file annual accounts;
- Failure to file an inventory or descriptive list of assets; and
- Mismanagement of the succession.
Get Help from a Louisiana Succession and Probate Lawyer Who Has Actually Successfully Removed Numerous Succession Representatives
Peter Diiorio of New Orleans Legal, LLC is an experienced Louisiana succession and probate attorney. Mr. Diiorio frequently handles complex succession matters, including succession and probate litigation and disputes. Mr. Diiorio has successfully removed multiple succession representatives after contradictory evidentiary hearings.
Mr. Diiorio is happy to provide a free consultation to discuss your succession and probate matter. Please contact Mr. Diiorio now at (504) 897-5580 to schedule a free face-to-face, Zoom, or telephone consultation, and let us handle your probate matter for you.
