The role of the executor in the inheritance process in Spain

In this article, we will take a closer look at the role of the executor, which is regulated in article 892 of the Spanish Civil Code (Cc) and who appears on a regular basis in inheritance procedures in Spain.

What is an Executor?

The Cc does not define an executor specifically. Therefore, to obtain an approximate idea, we will use the definition given by the Royal Academy of the Spanish language which defines an executor as: a person charged by the testator or by the judge to fulfil last will of the deceased, taking custody of his assets and giving them the corresponding destination according to the will.

So as to avoid confusion, we must remember that the testator is the individual who drafts the will e.g. the deceased.

The position of the executor is a voluntary one. Once six days have gone by since he is made aware of his naming as executor and no refusal is given, the position is considered accepted. Once the position is accepted, this person takes on the obligation of completing it. However, he may renounce the position for a just cause and is qualifies as such by a competent judge.

The testator may name one or more executors to take charge of complying with his last will. However, to be a executor, one must remember that he must have the legal capacity to bind himself, so of course, underage individuals cannot be executors, even with express consent from his parents or guardians.

In the case that the testator names more than one executor, they can be named to carry out their position jointly, successively or severally.

Types of executors

Joint executors

they can only carry out their charge jointly or together. One of them can take charge with the legal consent of the others. In the case of discrepancies, decisions are made by a majority of the testators.

Severally executors

Any act carried out by any one of them is perfectly valid, unless one of them is expressly opposed to it.

Successive executors

This takes places when one of the nominated executors does not accept the responsibility or his nomination expires and the next executor is named.

In any case, if the testator does not expressly establish that the executing must be carried out severally, it will be understood that it shall be done jointly in virtue of art. 897 of the Cc.

The role of the executor is very relevant in inheritance proceedings in Spain when they are expressly named. The bestowed powers are determined by the testator, as long as they are not contrary to the law or public order. In the case the powers are not expressly determined by the testator, they will be the ones mentioned in art. 902 of the Cc.

This article is not considered as legal advice

Mariscal & Abogados is an international and multidisciplinary law firm with proven experience in diverse areas of the Law. Our working languages are English, German, French and Spanish. For any further enquiries please Contact us