Last Will and testament Executor of the Will in Spain

Executor of the Will in Spain

An executor is a person appointed by a testator, in charge of carrying out all his instructions to comply with his last will.

What is the role of the executor?

The executor is the person who, at the request of the testator, will be responsible for ensuring the proper execution of the will.

It is important to bear in mind that the figure of the executor is a charge of voluntary acceptance, whose validity depends on its express appearance in the will.

Where is the executor regulated?

The legal foundation of the executor is found in the Civil Code, Title III (of the inheritance), Chapter II (of the inheritance), Section 11 (of the executors or testamentary), articles 892 to 911.

Who can be an executor?

To be an executor it is necessary to have the capacity to be bound. So it is said in precept number 893 of the Civil Code.

How is the position of executor accepted?

Considering the literality of article 898 of the Civil Code, the executor is a voluntary position, and it will be understood accepted by the appointed to perform it if he does not excuse himself within the six days following the one in which he has news of his appointment, or, if he is It was already known to him, within six days after he learned of the testator’s death.

Under this field it should be noted that, according to article 900 of the same code, the executor who does not accept the position or resigns without just cause, will lose what the testator would have left him (except always the right he had to the legitimate).

What powers will every executor have?

Executors may develop all the powers expressly conferred on them in the will, as long as these are not contrary to the law.

What if the testator had not specified the powers of the executor?

This scenario is determined in precept number 902 of the Civil Code as follows:

Not having the testator specifically determined the powers of the executors, they will have the following:

  1. To arrange and pay the suffrages and the funeral of the testator in accordance with the provisions of the testament by him; and, failing that, according to the custom of the people.
  2. Satisfy the legacies that consist of cash, with the knowledge and approval of the heir.
  3. Watch over the execution of everything else ordered in the will, and maintain, being fair, its validity in court and outside of it.
  4. Take the necessary precautions for the conservation and custody of the assets, with the intervention of the heirs present.

Article 902 of the Civil Code

Will the task of the executor be remunerated?

The figure of the executor is a free charge. However, it is up to the testator to stipulate the payment of remuneration, if he so wishes.

Legally, this matter is explained in article 908 of the Civil Code:

The charge of executor is free of charge. However, the testator may indicate to the executors the remuneration that he considers convenient; All without prejudice to the right that assists them to collect what corresponds to them for the partitioning or other optional work.

If the testator bequeaths or jointly designates any remuneration to the executors, the part of those who do not accept the position will increase to those who perform it.

Article 908 of the Civil Code

For how long will the figure of the executor be in operation?

To answer this question, we must refer to the following articles (904, 906 & 906) of the Civil Code:

The executor, to whom the testator has not set a deadline, must fulfill his order within one year, counted from its acceptance, or from the end of the litigation that is promoted on the validity or nullity of the will or of some of its provisions.

If the testator wishes to extend the legal term, he must expressly indicate the extension. If he had not indicated it, the term shall be understood to have been extended for one year. If, after this extension, the will of the testator has not yet been fulfilled, the judicial clerk or the notary may grant another one for as long as necessary, taking into account the circumstances of the case.

The heirs and legatees may, by mutual agreement, extend the term of the executor for as long as they deem necessary; but, if the agreement were only by majority, the extension may not exceed one year.

How does the position of executor end?

From article 910 of the Civil Code the following causes of termination of executor can be inferred:

  • Death.
  • Impossibility.
  • Resignation or removal of the executor.
  • Expiration of the period of time stipulated by the testator or by law.