testamentary execution
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Execution of a will and the role of the executor
Every testator has the right to provide for the execution of his or her will in his or her last will and testament. This primarily serves to enforce the testator's express wishes and achieve his or her goals.
The purpose of testamentary execution is not only to ensure a swift and fair distribution of the estate and the protection of assets, but also to guarantee the financial security of the surviving dependents and maintain family peace. Even with carefully drafted testamentary dispositions, disputes can arise within the community of heirs, which can be effectively avoided through testamentary execution.
As specialized attorneys for inheritance law, we provide our clients with comprehensive support in the administration and settlement of estates within communities of heirs. This article provides you with a detailed insight into the execution of wills in general, as well as the responsibilities of the executor.
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3Reasons and motives for the execution of a will
The decision to execute a will can have various reasons:
Execution of the testator's will
The testator wants to ensure that his or her final wishes are actually carried out. This can be particularly important if the will contains complex wishes or instructions that require precise execution.
Avoiding the breakup of the estate
If the community of heirs is large or if the heirs have differing interests, the executor can prevent the estate from falling apart. He or she ensures the orderly and fair administration and distribution of the assets.
Avoiding disputes within the community of heirs
Another reason for appointing an executor is to avoid conflicts among the heirs. If the testator fears that disputes might arise during the distribution of the estate, the executor will ensure a fair and peaceful settlement of the inheritance.
Support for inexperienced or underage heirs
Testamentary execution is particularly useful when the heirs are unable to administer the estate independently—for example, due to a lack of experience or when minor heirs are involved. This is often the case when the estate includes businesses or real estate that require special administration.
Business succession in the event of inheritance
An executor with specific expertise can ensure a smooth transition of a business, especially during a generational change. This often requires careful coordination between inheritance law and corporate law to resolve complex issues.
Special family situations
In cases where heirs receive social assistance, are minors, a divorced spouse is involved, or an heir is burdened with significant debts, testamentary execution combined with pre- and post-inheritance can be a sensible solution. This can prevent unwanted creditors, social security offices, or former spouses from accessing the estate.
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Order for the execution of a will
The decision to order the execution of a will rests solely with the testator and is made through a corresponding clause in the will or inheritance contract. Once this decision has been legally made, it is binding and cannot simply be overridden by the heirs.
The precise details of the execution of the will depend primarily on the wishes of the testator, particularly regarding the scope and nature of the execution. The testator has the freedom to limit the execution of the will either to specific parts of the estate or to direct it only for selected co-heirs.
If the testator has specific ideas regarding the execution of the will, it is advisable to seek legal advice in order to formulate these precisely in the will.
Types of testamentary execution
Testamentary execution offers the testator various options, which they can choose depending on their personal needs. The two most common types of testamentary execution are liquidation execution and administrative execution.
Liquidation enforcement
Execution by winding-up is the most common form of testamentary execution. It takes effect automatically if the testator merely orders the execution of the will in their will, but leaves no specific instructions. In this case, the executor assumes the task of implementing the testator's final wishes and distributing the estate among the heirs.
The executor temporarily manages the estate and initially settles any outstanding debts of the testator, including legacies or conditions. If there are multiple heirs, the executor ensures that the inheritance is distributed as quickly as possible. If the estate includes indivisible assets, such as real estate, the executor may be required to sell or auction these assets to facilitate distribution. The liquidation process ends once the estate has been distributed among the heirs.
Administrative enforcement
The will can also stipulate that the executor administers the estate only for a specific period of time. This form of testamentary execution is regulated in Section 2209 of the German Civil Code (BGB) and focuses on administering the estate without requiring any distribution among the heirs.
Administrative execution is often ordered only for certain parts of the estate, such as real estate or businesses, where the testator does not expect the necessary expertise or experience. This is especially true if the heirs are inexperienced, minors, or have not yet achieved a certain level of education or professional qualification.
Costs of executing a will
Determining the remuneration for the execution of the will is an important point that the testator should regulate in their will. Once the executor accepts their office, they are obligated to accept the remuneration specified in the will.
However, if the testator has not made any specific provisions regarding remuneration, an agreement must be reached between the executor and the heirs. In such cases, the law provides for "reasonable remuneration." In practice, this is often calculated using tables that specify the remuneration as a percentage of the gross estate.
Alternatively, a time-based fee can be agreed upon. In addition, the executor will be reimbursed for expenses, such as the costs of hiring a lawyer or tax advisor, provided these expenses are deemed necessary under the circumstances.
Duties of the executor
The executor is responsible for administering and safeguarding the testator's estate. To properly carry out this task, he or she has the following duties:
- Application for a certificate of executorship at the probate court to prove his legitimacy in legal transactions.
- Preparation of an estate inventory according to § 2215 BGB, in order to provide the heirs with a comprehensive overview of the estate.
- Fulfillment of the obligation to provide information and accountability towards the heirs according to § 2218 BGB.
- Conscientious and careful fulfillment of his duties according to § 2205 sentence 1 BGB, including the preservation and increase of assets.
- Implementation of courtesy and obligatory gifts according to § 2205 sentence 3 BGB.
- Prohibition of doing business with oneself according to Section 181 of the German Civil Code (BGB), regarding the acquisition of estate assets.
- Liability for damageswhich he caused intentionally or negligently, according to § 2219 BGB, with his own private assets.
What applies in the event of conflicts between executors and heirs
The execution of a will is usually stipulated in the will to prevent potential inheritance disputes. However, the execution itself can cause conflicts between the heirs and the executor.
For many heirs, the appointment of an executor can be perceived as a form of paternalism. In practice, conflicts often arise regarding the settlement of the inheritance, the distribution of the estate, and the determination of the executor's remuneration.
Should the executor breach his or her duties, the heirs have the option of applying to the probate court for the executor's removal. Furthermore, the executor is liable for any damages resulting from his or her breach of duty and must compensate the heirs for these.
We help you with the execution of your will
Do you have questions about the contents of a will or are your financial circumstances complex? Our inheritance law experts offer comprehensive legal support for testators, executors, and heirs in the area of testamentary execution, including:
- Drafting of wills with regard to testamentary execution
- Development of strategies to avoid liability
- Legal advice on the execution of wills in companies
- Support for executors before taking office
- Representation in disputes regarding remuneration, dismissal or liability of the executor
Please feel free to contact us by phone or via our contact form if you have any questions about testamentary execution! We're here for you!
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