The executor of the will

Under the old inheritance law it was possible to appoint an executor of the will or codicil.

Under the current law of succession (which entered into force Jan. 1, 2003), an executor of the will, or executor for short, can only be appointed by will.

Thus, the possibility of appointing an executor by codicil expired as of Jan. 1, 2003. However, an executor's appointment by codicil from before January 1, 2003 remains valid after that date.

An executor is a trustee of the testator, someone who handles all matters after death. The advantage of appointing an executor is that third parties only have to deal with one person and not all heirs collectively, and all necessary actions can be taken immediately after death.

Under the old inheritance law, children of the deceased could oppose the appointment of an executor; under the current inheritance law, the executor must, in principle, be tolerated by the children. Consequently, the possibility of appointing an executor is likely to be used more often.

The powers of the executor can be expanded under current inheritance law.

There are three "types" of executors:

• the "funeral executor": someone who may only arrange the deceased's funeral;
• the "management executor": someone whose task -in addition to the above- is to manage the estate's assets and pay the estate's debts;
• the "executor-settlement administrator": a combination of the aforementioned management executor and administrator.

The latter "type" of executor can have very far-reaching powers, for example determining how the estate is distributed and managing the assets.

However, the children do not have to tolerate the latter executor.

If one has appointed an executor before Jan. 1, 2003, and dies after Jan. 1, 2003, that executor is presumed to be the managing executor.

As long as the executor is in office, he is the only one who can independently dispose of the assets of the estate. He is the one who determines, for example, to sell the house or dispose of the securities portfolio, but he must consult with the heirs. Furthermore, he must give the heirs any information they want. The heirs can perform acts of management and disposition only with the cooperation of the executor or with the authorization of the court.

A will can deviate from this legal regulation.

For example, one can stipulate that the executor does not need to consult or that, on the contrary, the executor needs the consent of the heirs for the realization of assets of the estate.

Instead of one executor, one can also appoint two or more executors. Unless otherwise stipulated in the will, in that case each of them can carry out all the work alone.

The executor has the power to appoint the estate notary, even if the heirs would not agree.

The executor's remuneration under the old inheritance law was 2.5% of receipts and 1.5% of expenses. Under current inheritance law, it is simpler: 1% of the deceased's assets (that is, total assets minus all debts) at the time of death, regardless of the amount of work performed by the executor.

Should there be two or more executors, they should share this amount together.

If there are complicated assets and/or quite a few debts, this remuneration may be on the low side.

A will may deviate from the remuneration regulated by law.

In case a will made before January 1, 2003 stipulates that the remuneration of the executor shall be "according to the law" and the testator dies after January 1, 2003, this should be read as the "old" law, i.e. 2.5% of the income and 1.5% of the expenses.

If an executor dies, his duties are not taken over by his heirs.

It is therefore useful that, if an executor is appointed by will, a successor executor is also appointed or an arrangement is made such that the court appoints a new executor in the event that the current executor becomes defunct.