What is an executor in a will?
In this blog article, we wish to explain what an executor is in a will. In inheritance procedures with a will that are complex, wills with a large estate, or where conflicts of interest are involved, the figure of the testamentary executor may appear. As Notaries in Barcelona, we explain who they are, what they are for, and what powers or obligations they have.
What is a testamentary executor?
To define what an executor in a will is, the best option is to specify that it is a trusted figure of the testator who is appointed to fulfil the will decreed in their will after their death.
It is more common to use the figure of the executor in inheritances affecting family businesses or where there are interests among the heirs of a capital company, in complex inheritances where there are legatees and several heirs or even minor heirs, or in cases where the testator wants to avoid future disputes or legal conflicts among the beneficiaries of their inheritance.
Obviously, it is not necessary to appoint an executor when making a will, as the appointment of the executor is entirely voluntary for the testator. But if someone wishes to appoint one, they must do so expressly in the will, when granting it. The executor is established as a trusted figure entrusted with ensuring the provisions set out by the testator in the will are carried out.
If you wish to know more about wills, we recommend the following article:
Characteristics of the executor in a will
The testamentary executor is a figure who also has rights:
- Although their position is unpaid under Common Law, they can be remunerated if the testator so stipulates
- They have the option to renounce the position
- There can be joint or several executors (decisions will be made collectively by consensus or individually, respectively)
- It is possible for the executor to also be an heir or legatee
- Their mission ends once the will has been fully executed
Although it is not necessary for the testator to inform the executor of their appointment, it is advisable so that, during their lifetime, they can help them understand the provisions granted in the most appropriate way.
What power does an executor have in a will?
What is the purpose of an executor in a will and what obligations do they have? Now that you know what an executor is in a will, you should know that they have various functions to perform:
- Find the most recent will and validate it
- Inventory all the deceased’s assets and rights
- They are obliged to fulfil the wishes set out in the will: they will manage the deceased’s assets, the payment of debts (mortgages, loans or outstanding bills) or the custody and protection of the inheritance estate from possible losses. Likewise, they must inform the heirs of such management.
- They will represent the deceased’s estate in legal proceedings and will be responsible for hiring professionals such as lawyers or Notaries when necessary.
- They will distribute the assets and legacies in accordance with the testator’s wishes and the law
However, it should be emphasised that the executor’s power is limited. They must act in accordance with the provisions of the will and the law. If the opposite occurs, it is possible to request that they cease to hold their position through legal action for reasons such as mismanagement, conflict of interest, negligence or dishonest or fraudulent behaviour.
Types of executor
There are two types of executors in a will:
- Universal executor: in cases where the will must be fully executed
- Particular executor: for specific executions established in the will
Specialties of Catalan Law in relation to the figure of the executor
In Catalan law, the executor is regulated in article 429 of Law 10/2008, of 10 July, of the fourth book of the Civil Code of Catalonia, relating to successions. This article 429 regulates the figure of the executor in great detail, having a regulation very similar to that of executors in common law.
The following issues stand out in the Catalan regulation:
- The functions of universal and particular executors are specified, unless there are more specific provisions from the testator
- It is established that the period for the executor to fulfil their task is one year from the death of the testator (unless the testator has established a more specific period)
- The position of executor is established as remunerated. This remuneration, if the testator does not establish that it is free or higher, will be 5% of the net hereditary assets for universal executors and 2% for particular executors
- Furthermore, executors have the right to be reimbursed for expenses incurred by their actions.
Frequently asked questions related to the executor in inheritances:
Incapacitated persons and minors may not be appointed as executors.
Resignation must be submitted in writing within six days following the appointment. If no resignation is submitted, acceptance of the position is assumed.
They must process them within a maximum period of one year after being appointed.
In this case, it will be the heirs who process the will.
In this case, if the testator defined a remuneration for an executor who is an heir, the heir will not be able to receive it.
The Catalan Civil Code establishes that if the testator determines that the role of the executor should be remunerated, it will depend on the type of executor. If it is universal, they will receive 5% of the value of the inheritance, whereas if it is particular, 2% of the value of the assets in which they participate in the administration.
JLA Notaries, Notary in wills in Barcelona
When dealing with complex inheritances and the figure of the executor appears, it is normal that, not being familiar, people ask what an executor is in a will. As Notaries for inheritances and wills, we hope this explanation has been of interest to you. At our Notary Office in Barcelona, we will be happy to assist you with any questions you may have, so we hope this article has resolved some of them.
Likewise, if you need more information, do not hesitate to contact us through our contact form or by email writing to bcn@jlanotarios.com.
