Who can become an executor?
According to the law, any person can be appointed by the testator to execute the will. However, the success of the execution of the will stands and falls with the person appointed. In addition to professional expertise, the office requires a high degree of diligence, decisiveness, assertiveness and persuasiveness as well as the ability to strike a balance and inner independence. If a relative or co-heir is appointed as executor, numerous conflicts of interest usually arise. The purpose of executing a will is often precisely to prevent disputes between the heirs and to distribute the estate as the testator intended. However, it is then clear that the person who claims something from the estate as executor - whether as co-heir or legatee - often has to put up with the accusation of being involved. Disputes between the heirs, on the other hand, can be avoided by appointing a neutral person: The estate can then be settled with a high degree of personal and objective distance as a mediator between opposing heirs. In most cases, it makes sense to appoint a specialist in inheritance law, usually a lawyer specialising in inheritance law, as laypersons are usually unable to cope with the extensive and complicated settlement of an estate.
Can the executor refuse the office?
The person appointed by the testator only becomes executor when he or she accepts the office. The person appointed by the testator is not obliged to do so. The person appointed by the testator should also consider carefully whether he or she really wants to accept the office. The office entails far-reaching duties and liability risks. The remuneration that the executor receives for their work is often unclear. As long as this is unclear and no remuneration and liability limitation agreement can be reached with the heirs, the executor should consider the possibility of refusing, especially if they are not legally trained.
Can the probate court appoint another executor in the event of refusal?
If the testator has stipulated in his will that the probate court should appoint an executor, e.g. if the named executor dies or resigns from office, this also applies in the event that the named executor does not accept his office in the first place. This follows from Section 2200 (1) BGB. According to general opinion, such a disposition by the testator does not have to be express. It is sufficient that the testator's intention that the probate court should appoint an executor can be ascertained by interpreting the testamentary disposition - possibly in a supplementary manner. If the testator has ordered the execution of the will himself and the appointed executor has ceased to exist due to non-acceptance or termination of the office, it must be examined whether the will as a whole reveals the testator's intention to continue the execution of the will even after the person named by the testator has ceased to exist. In this context, it must be examined whether the testator would presumably have wanted the probate court to appoint an executor of the will, taking into account the situation that arose later. In this respect, it may be particularly important to determine the reasons that led the testator to order the execution of the will and whether, from the testator's point of view, these reasons continue to exist even after the person named in the will has ceased to exist. In order to determine the testator's intention and the reasons that prompted him to order the execution of the will, the entire content of the declaration, including all ancillary circumstances, including those that lie outside the will document, must be assessed as a whole; general life experience must also be taken into account (see Bavarian Supreme Court, decision 01.10.2002 - 1Z BR 83/02).
Can the heirs request an inventory of the estate?
Pursuant to Section 2215 of the German Civil Code (BGB), the executor must provide the heir with a list of the estate assets subject to his or her administration and the known estate liabilities immediately after accepting the office. Drawing up the inventory of the estate is one of the key duties of the executor. The inventory of the estate is the basis for the proper performance of the office, without which the accounting owed by the executor pursuant to Section 2218 is not possible and the heirs would not be able to exercise their rights of control. A breach of the obligation to draw up the inventory of the estate constitutes a gross breach of duty and may, under certain circumstances, be grounds for demanding the dismissal of the executor.
When does the executor have to draw up the list?
As long as the executor has not yet formally accepted the office, he is not obliged to draw up the list. After accepting office, the executor must draw up the list without delay and send it to the heirs. When transmission is still considered immediate in a specific case depends on the circumstances. In the case of complicated or unclear financial circumstances, preparation and transmission may still be timely even months later. Due to the uncertainty this creates for the executor, it is recommended that the executor informs the heirs of the progress of the enquiries in the event of complicated or unclear financial circumstances, even if a complete inventory of the estate cannot yet be submitted.
What content must the directory have?
All items subject to the executor's administration must be listed in the estate register. This includes assets such as real estate, bank accounts, jewellery, household effects, cash, motor vehicles, etc. Liabilities, i.e. liabilities to banks, the tax authorities or other persons, must also be included in the list. Corresponding supporting documents must be attached to the list.
If the executor does not have the necessary documents, he or she must make appropriate enquiries. For example, the executor must write to the credit institutions with which the deceased held a man account. Enquiries must be made via the land registry about the deceased's property.