Does the testator have to appoint the executor himself or can he leave this to another person?
The testator can delegate the appointment of the executor of the will to a third party in accordance with Section 2198 (1) BGB, who then selects a suitable person and declares the appointment to the competent probate court in a publicly notarised form.
In addition, the testator may also authorise the executor appointed by him/her in accordance with Section 2199 (2) BGB to appoint a successor in the event that his/her office expires. The appointment of a successor by the person initially appointed as executor of the will in accordance with Section 2199 para. 2 BGB requires the acceptance and exercise of the office. If the person initially appointed as executor rejects the office from the outset and the right of appointment pursuant to Section 2199 para. 2 BGB fails solely due to this circumstance, an interpretation of the will may be considered to the effect that the person initially appointed as executor was also authorised as a third party within the meaning of Section 2198 para. 1 BGB to appoint a (substitute) executor.
Can the testator appoint a substitute executor?
Pursuant to Section 2197 (2) BGB, the testator may appoint a substitute executor in the event that the originally appointed executor ceases to exist before or after accepting the office. Unless the testator instructs otherwise, the replacement appointment also applies in the event that the appointment of the first executor is invalid or the latter refuses to accept the office. If the testator has appointed a substitute executor or has authorised another person to appoint an executor, it is obvious that the execution of the will does not end when the incumbent executor ceases to hold office.
The testator can also appoint several substitute executors. However, they should make sure that the order is clearly regulated. Otherwise, it may be difficult to determine the order by interpreting the will.
Does the execution of a will end if the executor resigns or dies before completing his or her duties?
The premature termination of the executor's office, e.g. due to death or if the executor resigns, initially only terminates the office of the incumbent executor. This does not mean that the execution of the will has ended altogether. The probate court is not authorised to terminate the execution of the will in its entirety.
However, the termination of the appointed executor can actually also lead to the termination of the entire execution of the will if this was the testator's intention, i.e. if the testator did not appoint a substitute executor and the interpretation of the will shows that the execution of the will as a whole should also end with the termination of the office of the appointed executor.
Can the probate court appoint an executor on its own initiative?
If the testator has appointed an executor and the executor ceases to exist because the testator dies, refuses to accept his or her office for whatever reason or resigns, it may be questionable whether the probate court should appoint another person as executor. However, if the testator has appointed a substitute executor or authorised another person or institution to appoint a substitute executor, this question does not arise.
Pursuant to Section 2200 BGB, the probate court can appoint an executor if the testator has requested the probate court to do so in a will. In very few cases will such a request be expressly included in the will. However, a request to the probate court can also be implied if such an intention of the testator can be inferred from the interpretation of the will. Case law is sometimes quite generous in assuming a corresponding testator's will and sometimes affirms a request within the meaning of Section 2200 (1) BGB even if the testator „presumably would have wished to be appointed by the probate court“.
However, the question of whether the testator has made an implied request to the probate court depends on the circumstances of the individual case. The judicial appointment of an executor in accordance with Section 2200 BGB always requires a corresponding request from the testator. The Düsseldorf Higher Regional Court stated in its decision of 21 March 2018 - I-3 Wx 211/17:
„If a person appointed by the testator as executor of the will ceases to exist, the entirety of the testamentary disposition must indicate the testator's intention that the execution of the will should be carried out or continued until the tasks have been completed. To this end, the reasons that prompted the testator to make the will must be determined and whether these reasons will continue to exist from the testator's point of view even if the named person ceases to exist. It is necessary to establish that the testator would presumably have wanted the probate court to appoint an executor, taking into account the circumstances that have subsequently arisen.“
Can the testator appoint a person other than the executors named in a previous spouse's will?
If spouses have drawn up a joint will, the dispositions made may be binding after the death of one spouse. This is the case if provisions are reciprocal within the meaning of Section 2270 (2) BGB (you can find another article on this in our blog). If there is a binding effect with regard to the appointment of the final heirs (e.g. the joint children) and the spouses have ordered the execution of the will and appointed a specific person as executor, the question arises as to whether the surviving spouse can change the executor of the will after the death of the first deceased. This is disputed in case law and literature. In some cases, the replacement of the executor of the will is considered permissible without further ado because it does not lead to any additional impairment of the heirs appointed in respect of the change.
According to another opinion, the replacement of the person of the executor of the will is generally permissible, but exceptionally not if the spouses had attached certain ideas to the person of the executor of the will. As far as can be seen, the Federal Supreme Court has so far only dealt with this issue in cases concerning the replacement of an executor named in a testamentary contract. In principle, a testator is still entitled to change the executor named by him for his estate. Nevertheless, a change in the person of the executor of the will could be ineffective if the replacement impaired the contractual heir, which in turn could only be determined by interpreting the content of the contract. In its decision of 4 November 2019 - case reference: 3 Wx 12/19, the Higher Regional Court of Schleswig saw an impairment of the contractual heir in the fact that the executor of the will subsequently appointed by the surviving spouse was to receive remuneration, whereas the previous executor of the will appointed jointly by both spouses was expressly to act free of charge.
The Higher Regional Court of Schleswig saw this as an unlawful burden on the contractual heir. In a decision dated 2 January 2024 - case no. 137 VI 611/22, the Neuss Local Court also took the view that the replacement of the executor of the will may be invalid if it is associated with a disadvantage for a contractual heir. According to the Neuss Local Court, a disadvantage can be assumed if the surviving spouse appoints the new executor from among the co-heirs, while the spouses had previously jointly appointed a „neutral person“, e.g. a lawyer or tax advisor of the spouses.