QUESTION:
Dear Lawyer,
My father (not a Spanish national) arranged a Spanish Will, a long time ago, where we, the children had been appointed as heirs, also, he chose someone to act as executor. After my father’s death, the executor said that he didn’t want to act as executor due to health problems. Now, we need to know what happens if the executor cannot help us or in the event, that he passes away. Who will be the person or persons that will need to act, in order to make sure that the wish of the testator-deceased, is executed.
Thank you for your help.
Dear Sir,
Thank you for your query.
The first thing that you need to bear in mind is that although this is a Spanish Will, it is possible that the inheritance is governed by your father’s national law, and therefore, it is possible that the consequences of the renunciation or the death of the executor must be determined by that law.
The second thing that people must bear in mind is that as per the Spanish Law, there is no legal requirement regarding the appointment of an executor on the Will, although in some occasions this can be very convenient. With regard to Spain, the laws are different to other countries, where normally an executor must be legally appointed on the Will.
Regarding the consequences of the renunciation or death of the executor, this is regulated on the Spanish Civil Code (CC, eal Decreto de 24 de julio de 1889), and we can confirm that:
If the executor passes away or renounces their duties as executor, during the Inheritance-Probate process, then the executorship will be terminated. As per the article 910 CC that states:
Article 910. Executorship shall terminate as a result of the death, impossibility, resignation or removal of the executor, and by expiration of the deadline provided by the testator, by the law and, as the case may be, by the interested parties. The judge must also agree with the removal.
In the case where there is no executor or the executorship is terminated for any reason, including the renunciation of the executor or his death; the heirs are by law the ones that will be in charge of executing the testator’s wishes, as per the article 911 CC:
Article 911. In the cases provided in the preceding article, and in the event that the executor has not accepted the position, the heirs shall be in charge of executing the testator’s intentions.
Therefore, in your case, if the Spanish Law is applicable to this inheritance, if the executor renounces formally or passes away, the heirs appointed on the Will, will become the executors.
If you or someone you know has any legal issue regarding a Will or inheritance in Spain, please contact us and we will help you.
The information provided in this article is not intended to be legal advice, but merely conveys general information related to legal issues.
Carlos Baos (Lawyer)
White & Baos
Tel:+34 966 426 185
E-mail: info@white-baos.com
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