executor
The executor is usually provided by the testator appointed person (often called trustees ) the testamentary dispositions has to bring the testator to execute. The regulations for the execution of wills can be found in § § 2197 ff. BGB .
Reasons for the arrangement
Reason for ordering the execution of the will can e.g. B. be
- safeguarding the will of the testator (e.g. with regard to a legacy or a condition),
- the protection of the heirs from themselves (e.g. minors)
- Simplification of administration and division of the inheritance (especially if there are several heirs)
Appointment of the executor
The person of the executor is regularly named by the testator in his will or an inheritance contract ( Section 2197, Paragraph 1 BGB). Alternatively, the executor can, however, also be appointed by a third party authorized by the testator ( Section 2198 (1) BGB) or by the probate court on the basis of a request by the testator in the will ( Section 2200 (1) BGB).
The office of the executor only begins with its acceptance, which must be declared to the probate court or otherwise refused. There is no obligation to assume the office of an executor.
Duties of the executor
If the testator has not specified anything in particular, the executor should execute the testator's wills ( § 2203 BGB) and deal with the estate ( § 2204 BGB). In this case, the executor is referred to as the executor.
The testator can also assign other tasks to the executor by will, e.g. B. to administer the estate for a certain period of time for the heir ( § 2209 BGB). In this case, one speaks of permanent will execution and describes the executor as the administrative executor. The permanent execution of the will is generally possible for a maximum of 30 years after the death of the testator ( § 2210 BGB), but can also be ordered until the death of the heir or the executor. The execution of a permanent will is often arranged as part of a so-called handicapped will .
If the executor is to (only) monitor the fulfillment of the obligations of a person benefiting from the will without having any administrative rights, the will is supervising execution.
According to Section 31 (5) ErbStG, the executor's duties also include submitting inheritance tax returns. The executor of the will must also ensure that the inheritance tax is paid as soon as he is notified of the tax assessment ( Section 32 (1) ErbStG).
Administration of the estate in the event of execution of wills
During the execution of the will, the executor has the exclusive administrative right, § 2205 BGB. In particular, he is entitled to take possession of the estate and to dispose of the estate (e.g. sell). The executor is also entitled to enter into liabilities for the estate, insofar as the entry is necessary for proper administration, Section 2206 . In principle, he is not entitled to donations or other free disposals. In the case of transactions involving objects of the estate, the estate must therefore generally receive equivalent consideration. When assessing the equivalence of the consideration, the executor has a discretion in determining the price within the framework of the principles of proper administration. He is prohibited from doing business with himself if the testator has not ordered otherwise ( Section 181 BGB). The heir cannot dispose of the estate during the execution of the will (exception: supervisory execution). However, he has certain control rights (e.g. right to information). According to the prevailing opinion in the literature, it can also be obtained from third parties, e.g. B. banks, request information (e.g. about an estate account), since information is not a "disposal".
Dismissal of the executor
The probate court can dismiss the executor at the request of one of the parties if there is an important reason, Section 2227 (1) BGB. Such a reason is in particular gross breach of duty or inability to properly manage the business. The inability can result from inaction, but also from the inability to properly deal with the estate.
Executor status
Working as an executor is a generally permitted legal service in accordance with Section 5 (2) No. 1 of the Legal Services Act . In terms of tax law, executors' fees are those from other self-employed activities ( Section 18 (1) No. 3 EStG); they are to be treated similarly to the income of freelancers , not like that of businesspeople .
Remuneration of the executor
The executor can demand appropriate remuneration, unless the testator has determined otherwise, Section 2221 BGB. The testator can prioritize the “whether” and the amount of the remuneration in the will. If there is no concrete testamentary arrangement by the testator on the amount of the executor's remuneration, in the event of a dispute, the case law predominantly uses tables to determine the appropriate remuneration, according to which the fee is based on the gross discount as a percentage (so-called "Rhenish table" from 1925, later the "Recommendations of the German Notary Association for the Remuneration of the Executor ”from 2004 with surcharges and discounts). However, a remuneration based on the amount of time spent is also possible.
Execution certificate
Upon application, the probate court has to issue an executor with a certificate of appointment (certificate of execution of a will), ( Section 2368 (1) BGB). The executor's certificate confirms the person of the executor appointed by the testator or the probate court, but the office begins with acceptance. The regulations on the certificate of inheritance apply accordingly to the certificate of execution of the will ( Section 2368 (3) BGB). Like a certificate of inheritance, the certificate of execution of a will is therefore assumed to be correct ( § 2365 ) and public belief ( § 2367 BGB).
Qualification of the executor
Anyone can become an executor. Another question is whether the person is also suitable. The person should
- be significantly younger than the testator
- be experienced in business
- if possible without own interests and
- be healthy.
Most executors are confidants of the testator, e.g. B. Family members or friends.
There are also professional executors. These do not necessarily have to be lawyers.
Some private associations (e.g. Working Group for Execution of Wills and Assets Care eV (AGT) and the German Association for Inheritance Law and Asset Succession (DVEV) ) award the (state-unprotected) designation “Certified Executor” after a course . This designation does not necessarily mean that the person has practical experience. The BGH has therefore decided that the application as a “certified executor” is misleading if the applicant actually has no practical experience in the area of executing a will.
literature
- Bengel / Reimann: Handbook of the execution of wills , 4th edition, Munich 2010, Verlag CH Beck, ISBN 978-3-406-56206-8
- Haegele / Winkler: The executor . Walhalla-Fachverlag, ISBN 3802974530
- Rott / Kornau / Zimmermann: execution of wills . Gabler Verlag, ISBN 3834907219
Web links
Individual evidence
- ^ Judgment of the Federal Court of Justice of November 11, 2004, file number I ZR 213/01 (BGH judgment of November 11, 2004) and I ZR 182/02 (BGH judgment of November 11, 2004)
- ↑ Judgment of the Federal Court of Justice of June 9, 2011, file number I ZR 113/10 (BGH press release no. 102/11 of June 14, 2011) , published among other things by JurPC Web-Doc. 31/2012, paras. 1 - 24 [1]
