.jpg)
In this podcast, we speak with María Serra about what can be done to minimise potential inheritance disputes.
What is an executor?
An executor (known in Spanish law as an albacea) is the person appointed by the deceased to carry out the instructions set out in their will regarding their estate. The executor has one year from accepting the role to fulfil those instructions.
Who appoints an executor?
Under Spanish law, it is the deceased who appoints one or more executors to carry out the instructions contained in the will.
The appointment must be made in a will or in a succession agreement. There is also the figure of the court-appointed executor (albacea dativo), who is designated by a judge.
What does the role of executor involve?
The executor's role typically involves administering the estate assets, dividing or partitioning the estate, and distributing assets among the beneficiaries. The executor may also be entrusted with more minor matters, such as arranging the funeral and, more generally, carrying out and giving effect to any testamentary provisions.
The executor may be the same person as a heir or legatee named by the deceased, or an independent third party. The role may be held by one person or by several.
Is it compulsory to accept the role of executor? Who pays the executor?
The role of executor is not compulsory, the person appointed may decline to accept it.
In principle, the role is remunerated unless the testator has expressly stipulated that it is unpaid. The executor's fee will be whatever the testator has specified in advance; failing that, the law provides that a universal executor is entitled to approximately 5% of the net estate, while a specific executor or partitioning accountant (contador partidor) is entitled to 2% of that value or of the assets subject to partition. In either case, the fee is paid out of the estate.
Types of executor:
An executor is considered particular when appointed to carry out one or more specific tasks in relation to the estate, always coexisting alongside the figure of the heir.
A universal executor, on the other hand, is entrusted with the overall administration of the entire estate, and their role exists independently of any heir.
The universal executor has two core functions:
- to deliver the estate in its entirety to the persons designated by the deceased, or
- to apply the estate to the purposes expressed by the deceased in the will, the succession agreement, or a confidential trust arrangement (hereditary trust).
There are two types of universal executorship:
- conversion of all or part of the estate into cash. The fundamental purpose here is the liquidation of the estate, or a portion of it, into monetary form.
- direct delivery of the residual hereditary assets. In this case, the executor is responsible for handing over whatever remains of the estate after having first settled its liabilities, paying debts, distributing legacies, and fulfilling any other instructions left by the deceased.
The appointment of a universal executor does not preclude the existence of an heir, indeed, the executor may themselves be an heir.
The fact that a universal executor assumes the role of the heir does not in itself make them one, although it does not rule it out either.
A universal executor is not personally liable for the debts of the estate: they must pay those debts as part of administering the succession, but they are not liable for them out of their own personal assets.
When does the executor's appointment come to an end?
The appointment ends once the assigned tasks have been completed; however, before concluding, the executor must render a full account of their administration.
INHERITANCE LAWYERS IN BARCELONA:
If you need legal advice on inheritance matters, click here.
