Execution of wills

Who can become executor of a will?

According to the law, in principle, any person can be designated by the testator to be the executor of the estate. However, the success of the execution of the will stands and falls with the person entrusted with it. In addition to professional competence, the office requires a high degree of diligence, decision-making, assertiveness and persuasiveness as well as the ability to balance and internal independence. If a relative or co-heir is appointed as executor of a will, numerous conflicts of interest usually arise. The purpose of the execution of a will is often precisely to prevent disputes between the heirs and to grant the estate as the testator intended. It is then clear, however, that the person who, as executor of the will, demands something from the estate himself - be it as co-heir or as 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 handled with a high degree of personal and factual distance as a mediator between hostile heirs. In most cases, it makes sense to appoint a specialist in inheritance law, usually a lawyer specializing in inheritance law, to act as executor of the will, because legal laypersons are usually overwhelmed by the extensive and complicated handling of estates.


Can the executor refuse the office?

The person appointed by the testator only becomes executor of the will when he accepts the office. The person designated by the testator is not obliged to do so. The person designated by the testator should also consider carefully whether he or she really wants to accept the office. With the office far-reaching obligations and liability risks are connected. Frequently also the remuneration, which the executor receives for its activity, is unclear. As long as this is unclear and no remuneration and limitation of liability agreement can be reached with the heirs, the executor should consider the possibility of refusal, especially if he is not legally trained.


Can the probate court appoint a different executor in case of rejection?

If the testator has stipulated in his will that the probate court should appoint an executor, e.g. if the appointed executor dies or resigns, this also applies if the appointed executor does not accept his office in the first place. This follows from § 2200 (1) BGB. According to general opinion, such an order by the testator does not have to be explicit. It is sufficient that the will of the testator can be established by interpreting the testator's last will and testamentary disposition - if necessary by supplementing it - that the probate court should appoint an executor. If the testator himself has ordered the execution of the will and if the appointed executor has ceased to be in office due to non-acceptance or termination of the office, it must be examined whether the will in its entirety shows the testator's will to allow the execution of the will to continue even after the person appointed by the testator has ceased to be in office. It must be examined whether the testator would have wanted the probate court to appoint an executor of the will, taking into account the circumstances that occurred later. In this respect, it may be of particular importance which reasons have determined the testator to order the execution of the will and whether these reasons, from his point of view, continue to exist even after the removal of the person named in the will. In order to establish the will of the testator and the reasons which led him or her to order the execution of the will, the entire content of the declaration, including all incidental circumstances, including those outside the will document, must be considered 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 estate register?

According to § 2215 BGB, the executor must inform the heirs immediately after accepting the office of the executor of the estate of a list of the assets subject to his administration and the known liabilities of the estate. Drawing up the list of the estate is one of the executor's central duties. The list of estates is the basis for the proper administration of the estate, without which the accounting owed by the executor according to § 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 register of estates it constitutes a gross breach of duty and may, under certain circumstances, be a reason to demand the dismissal of the executor.


When must the executor draw up the register?

As long as the executor has not formally accepted the office, he is not obliged to draw up the register. After acceptance of the office, the executor must draw up the register immediately and send it to the heirs. When a transmission is still considered to be immediate in a specific case depends on the circumstances. In the case of complicated or unclear financial circumstances, preparation and transmission may still be on time even after months. Due to the uncertainty this causes for the executor, it is recommended in complicated or unclear financial circumstances that the executor informs the heirs about the development of the research, even if a complete list of the estate cannot yet be submitted.


What should the inventory contain?

The inventory must include all the assets subject to the executor's administration. These include on the one hand the assets, such as real estate, bank accounts, jewelry, household effects, cash, motor vehicles, etc. On the other hand, the liabilities must also be included in the register, i.e. liabilities to banks, the tax authorities or other persons. The list must be accompanied by appropriate supporting documents.

If the executor does not have the necessary documents, he has to make appropriate inquiries. For example, the executor must write to the credit institutions where the testator had a man's account. Through the Land Registry, the executor must make inquiries about the testator's property.




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