Estate planning: Why nominate an executor?

If you are getting started with your estate planning and are worried about your last wishes being properly carried out, have you thought about an executor and the role they can play in assisting you?

Estate planning is an important step. Of course it may prove a difficult task, but it allows you to organise for your assets to be distributed in accordance with your wishes, whilst protecting the interests of your loved ones. So it is important to talk about your inheritance with your family, in order to explain how you have decided to split things up and to avoid any quarrels or misunderstandings among your heirs and legatees.

If, in spite of the precautions you have taken, you are worried about conflicts between your loved ones when you are gone, (disagreements within your family, for example), or if you are concerned that your last wishes may not be properly executed (complicated to carry out, no close family, etc.), you have the option of appointing an executor.

An executor is a person whom you trust and choose to ensure that your last wishes are respected after your death.

What is an executor?

An executor is a person whom you trust and choose to ensure that your last wishes are respected after your death. It may be a member of your family, a friend or a professional (notary, lawyer, etc.). The executor must be over 18, legally competent and should be named in your will.

They will be responsible for ensuring that the provisions of your will are properly executed, subject to applicable legal requirements. Their role will vary depending on the wishes you express during your lifetime.

Useful info: there is no legal obligation to choose an executor. If you do not name an executor in your will, a notary will be responsible for administering your inheritance.

What is the role of an executor?

As the person making a will, you define the role of the executor and the extent of their powers. In general, the executor ensures that your will is properly executed. In the event of dispute, the executor may take legal action to ensure that the provisions of your will are carried out, should your legal heirs or legatees try to escape their duties.

For example, you can give the executor the power to place an official seal on your assets if there are heirs who are minors or absent. They may also draw up an inventory of the assets in the estate or instigate the sale of property if there is insufficient liquidity to settle bequests.

The executor may also take protective measures (registration of the legatees’ charge, appointment of a trustee for an unclaimed estate, etc.).

If there are no statutorily entitled heirs, you can extend the powers of the executor.

Note that if there are no statutorily entitled heirs, you can extend the powers of the executor, for example, to sell the estate’s property to settle debts, where necessary. On the other hand, the executor cannot proceed with the distribution of assets to the heirs.

Useful info: the executor cannot draw up official deeds on the assets the way that a notary can. Their role is limited to ensuring proper execution of your last wishes and taking any protective measures required.

When does their role end?

The law provides that the executor’s right to take possession of the assets of the estate for administration purposes ends one year and one day after the date of your death, unless the executor’s role started late due to reasons beyond their control or, on certain conditions, at the request of the heirs.

However, even after this date, the executor is required to continue to ensure that the provisions of your will are properly applied.

Their role ends only once this task is completed or in one of the following cases: the executor is unable to continue in their role without suffering considerable damage, is dismissed by the court or dies, or the will is cancelled.

Executors carry out their duties for free. However, any fees that they may be required to pay to successfully carry out their role are charged to the estate.

Is the executor paid?

Executors carry out their duties for free. However, any fees that they may be required to pay to successfully carry out their role (fees for placing an official seal on the assets, for an inventory, account, etc.) are charged to the estate.

However, you can express your gratitude by including a bequest for the executor in your will.

Should you nominate one or several executors?

The executor you nominate is not obliged to accept the role. It may therefore be prudent to ensure their agreement in advance, or to nominate several executors. This way one of them will be able to take on the role should the others refuse.

You can also designate several executors, allocating each a different task: organising the funeral, finding documents, handling sensitive issues such as managing debts or taxes, etc.

Once they have accepted the role, the executor is, in principle, bound to carry it out.

What is the risk to the executor of not carrying out their role?

An executor who accepts the role assumes personal liability for it. They will have to account for their management of the estate to your heirs (or universal legatees) at the end of the year following your death.

Executors are accountable for their actions in the event of mismanagement or wilful deceit. If they have received a bequest as remuneration for their services, their liability will be more harshly judged.

Useful info: if there are several executors, they will be jointly liable for any errors committed, even if only one of them acted wrongly (unless you allocated them separate tasks).

Nominating someone you trust to ensure that your last wishes are properly executed, when the time comes, removes a burden from your loved ones and helps avoid potential conflicts.

Nominating someone you trust to ensure that your last wishes are properly executed, when the time comes, removes a burden from your loved ones and helps avoid potential conflicts. It is always useful to consult an estate planning expert who will help you take the most appropriate decisions to uphold your interests and those of your loved ones.