Emmanuelle KAELIN MURITH and Sébastien SCHNEUWLY, notaries in Bulle
The executor is a person designated by the deceased to execute his or her last wishes at his/her death. It is particularly recommended to designate an executor when the liquidation of the succession appears to be difficult owing to its scale or the type of assets involved or when there is a possibility of disagreement between heirs. Here is an insight into the features of the executor, his, her or its rights and duties and responsibilities.
The executor of the will
The designation of the executor is a last wish and should therefore be included in a will or in an inheritance agreement.
Any natural persons in full possession of their civil rights (man, woman, several people, notary, etc.) or legal persons (a company) may be designated as the executor of a will.
Once the will has been opened, the executor is not obliged to accept the mission. He, she or it has a deadline of a fortnight after information by the relevant authority to decide. Silence is considered to be acceptance. He, she or it is then issued with a certificate stating the capacity of executor by the competent authority.
The rights and duties of the executor
The rights and duties of the executor are defined in the first line of the will by the settlor. If such a wish is not stated, the law intervenes to define the powers of the executor. In any case, he, she or it has broad powers of administration and provision.
The rights and duties of the executor start with the acceptance of the mission. Once accomplished, the functions of the executor are terminated. His, her or its main mission shall be to respect the wishes of the deceased.
On taking up the function, the executor should draw up or be in possession of an inventory of the succession.
The executor administers the succession: he/she/it pays debts, legacies, pays costs, may be required to create a foundation (according to the deceased’s wishes) and prepares the division. When it appears necessary to pay the deceased’s debts or the succession’s debts to settle legacies, the executor may be required to sell off buildings even without the consent of the heirs. To accomplish the task assigned, the executor can act in ways that generate obligations (like reneging on a loan, concluding a contract, starting legal action, etc.) alienate the succession’s assets, burden them with a charge on real property, transfer debts, etc.).
The executor can take legal action in order to fulfil his/her/its mission. The executor alone has the capacity to be a party to legal action. However, the executor does not have the capacity to be a party in inheritance actions opposing heirs or in reduction actions against legatees.
When dividing the succession, the executor’s powers are more limited. The executor can only contribute to preparing the division, propose a division plan to the heirs, but does not have the power to sign such a division agreement alone. He/she/it should agree with the will of the heirs in all points to which they themselves agree. In the event of a disagreement, the executor may unilaterally terminate the mission or wait for one of the heirs to challenge the division.
The remuneration of the executor may be covered by the testator (leaving a legacy for example). In all cases, the executor shall be entitled to fair compensation which shall take into account all responsibilities, charges, the scale of the succession and outlays.
Responsibility and supervision of the executor
The executor has a responsibility to the heirs and must show all the diligence required by the circumstances. At the same time, heirs have few means of acting against the executor. The rules of mandate contract are applicable by analogy.
The authority does not permanently supervise the executor. In principle, it only intervenes if the heirs file a complaint.
To resolve matters in the best possible way, consult your notary.
Bulle, 1st January 2011