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Executor's obligations

What priority does the executor have to do?

As soon as the executor has found out that he has been entrusted with this task and has been appointed to it, he has to make decisions and take immediate measures at very short notice. Not infrequently, private individuals and legal laypersons are initially overwhelmed with this task. You run the risk of neglecting urgent action, which can ultimately lead to liability to the heirs. In order to decide whether the executor will accept the office at all, he must first get a quick overview of the will of the testator as well as of all those who come into question in the processing of the inheritance, i.e. the heirs, legatees, Creditor of the estate, etc. If he accepts the office, he must take the following immediate measures:

Because the executor has sole power of disposal over the inheritance objects, he is also obliged to take possession of them in accordance with Section 2205 II of the German Civil Code (BGB); this ensures that the heir has no access to the estate, but that the executor can actually carry out his work. If the heir refuses to surrender the estate, the executor must bring an action for surrender and granting of the property to the civil court. The same applies if individual inheritance items are with third parties. In order for the executor to be able to prove which objects he is taking into his own possession from the estate, he should draw up a list of these and, if necessary (e.g. in the case of jewelry or collections), add photographs.

Often the executor does not know the exact objects of the estate, or only partially. Therefore, according to § 260 I BGB, he can demand information from everyone about which objects belong to the estate and where they are located; Following the information, he can demand that the individual inheritance items be returned. An heir can of course defend himself against his request for surrender, in particular against the claim to surrender to the executor. For example, he may object that

  • a certain property of the estate is not subject to the execution of the will at all,

  • the executor of the will would have to immediately release the corresponding property of the estate from his administration in accordance with Section 2217 of the German Civil Code, or,

  • the executor of the will would have to immediately reassign the property demanded to the possessing heir by way of the estate dispute, Section 2242 of the German Civil Code (BGB).

How can an executor protect himself against risks from his work?

The execution of a will is not an honorary position, but a liability-laden activity with corresponding duties and obligations. Because the executor is liable for damages to the heirs for errors in his activities according to § 2219 BGB, he should in any case have taken out property liability insurance. However, it is disputed whether he may take the insurance premiums from the estate.

Expert tip from the specialist lawyer for inheritance law:

Lawyers who are entrusted with the execution of wills have professional liability insurance. You can find qualified and certified executors at www.NDTV.info.

What should the executor's file contain?

An execution of a will for the settlement of an estate is not done overnight. Just the determination (so-called constitution) of the estate with regard to its assets and liabilities can be very time-consuming and lengthy, depending on the complexity of the estate. The determination of the persons necessary for the dispute (identification of heirs, legatees, creditors, tax authorities, authorities, etc.) can also take a considerable amount of time. So that the executor can carry out his office properly and, for example, in the event of vacation or illness, a representative can quickly familiarize himself with the state of affairs, it is essential to set up precise documentation that must be constantly updated. The executor's file drawn up in this way also forms the basis for regularly providing the heirs with information, information and accounts as required. The executor's file should be divided into:

  • Correspondence with the heirs,

  • Correspondence with third parties, e.g. banks, creditors, debtors, tenants, etc.,

  • Correspondence with the court,

  • Tax matters,

  • other inheritance-dependent features, e.g. for companies with an inheritance.

How should mail and account traffic be regulated?

Immediately after assuming office, the executor should submit a mail forwarding request. As a result, he receives all correspondence addressed to the testator, from which he can derive relevant information about the composition of the estate. The mail forwarding request should initially be made for a period of half a year, since then the main correspondence will usually be forwarded.

Why is an estate account useful?

Because the executor has access to the estate accounts and thus the assets of the deceased, he should set up his own estate account for this purpose. It is advisable to use the testator's current account for these purposes. For the sake of clarity, other current accounts should be closed and only one should be kept for the estate.

How should the initial contact with the heirs be made?

The co-heirs often perceive the fact that the testator has “placed” an executor in front of them as uncomfortable, if not even justifying a dispute. However, by ordering the execution of the will, the caring testator took care that no dispute arises among the co-heirs in the dispute between the community of heirs; the executor is thus called as a “peacemaker”. In order to fulfill this function and to reduce any existing distrust of the heirs towards him, the executor should contact those involved in the inheritance as soon as possible. In this initial letter he should already explain what tasks he has to do according to the testator's specifications, what rights and obligations the law imposes on him, what measures must be initiated at short notice, what information and documents he needs from those involved in the inheritance and - not lastly, how his remuneration scheme is structured.

Expert tip from the specialist lawyer for inheritance law:

A targeted, friendly and substantively determined, as well as target-oriented and the next steps announcing the first letter usually creates a satisfactory basis for the cooperation of the executor with the co-heirs. The psychological aspect should not be underestimated: the earlier and more thoroughly the co-heirs are involved in the administration of the estate by the executor, the more willing they will be to cooperate.

What is meant by the “constitution” of the estate?

It is the inventory of the estate. It is one of the cardinal duties of the executor. On the determined basis of the extent of the estate, he must deal with the estate and deal with it; The later administrative work and dispute of the executor stands or falls with a complete and accurate estate investigation! For this purpose, he must determine all assets and liabilities of the estate, from which the main work of the executor at the beginning of his office is mandatory.

How do you get information from banks about the estate?

First of all, the executor will inspect the testator's mail, including, of course, account documents. This includes information on bank balances or bank details. Each testator's bank identified by the executor should be written to with a sample letter for the sake of simplicity. In this he can inform the bank about his administrative activities and powers as well as ask for information.

Wording example "initial letter to banks"

Dear Sirs and Madames,

I declare that I am the executor of your estate on. . . . . . deceased customer, the Lord. . . . . ., was ordered. I am attaching a certified copy of my certificate of execution to this letter.

Please tell me about all the accounts and savings balances of the testator in your company. Please note that I have exclusive power of disposal over these accounts. If you have any other bank details for the deceased at other credit institutions, I also kindly ask you to briefly notify us. Please also let me know whether the testator had a safe deposit box or a securities account of any kind in your home. Please also note my sole power of disposal there.

With best regards

Expert tip from the specialist lawyer for inheritance law:

The letter to the banks should be sent as a registered letter / acknowledgment of receipt in order to be able to prove access.

If the testator had accounts in Switzerland, the executor can ask the banking ombudsman, PO Box 18 18, CH-8028 Zurich, accordingly. At the federal office of the Landesbausparkassen, Buschstr. 32, 53113 Bonn, you can find out whether the testator had a home loan and savings agreement.

How does the executor ensure that only he can decide on bank balances?

In addition to the above-mentioned content of the initial letter to the banks, the executor must ensure that any given bank powers of attorney are revoked and credit cards are blocked. Otherwise, a third party would have access to parts of the estate, although only the executor has this authority. The above-mentioned initial letter to the banks should therefore be supplemented with the following additions:

Wording example "initial letter to banks additional instructions"

Please send me all accounts of the testator

  • an account consolidation for the last 6 months before the death of the testator and

  • Copies of the account opening applications, any existing loan agreements, guarantees and any bank powers of attorney and standing orders.

I hereby revoke any bank authorizations that have been granted and ask that any EC cards or credit cards that are in the testator's accounts be blocked. I also ask you to send me a copy of your notification in accordance with Section 33 ErbStG. I also contradict direct debits and collections retrospectively.

 

What should be considered with regard to existing life insurance policies?

The executor must determine whether the testator had taken out life insurance in favor of a third party as beneficiary. Such donations, if they were made among co-heirs, may be subject to settlement in the dispute according to § 2050 BGB. For this reason, the executor should contact the Association of the German Insurance Industry e.V., Friedrichstr. 191, 10117 Berlin, inquire whether the testator had taken out life insurance.

In legal terms, life insurance can represent a contract for the benefit of third parties in the event of death. With this type of contract, the value date ratio between the testator and the beneficiary is not infrequently a donation in which the agreement on the free donation often only comes about after the death of the testator. As soon as the executor knows that there was life insurance, he must declare the revocation to the life insurance company. So he can pull the life insurance into the estate.

Wording example "cover letter to life insurance"

Dear Sirs and Madames,

I declare that I am the executor of your estate on. . . . . . deceased customer, the Lord. . . . . ., was ordered. I am attaching a certified copy of my certificate of execution to this letter.

According to my information, the testator has taken out life insurance with your insurance company for the benefit of (beneficiaries). Please inform me of both the amount and the due date of the sum insured to be paid out. With regard to the subscription right in favor of the beneficiary, I shall, as a precautionary measure, revoke any order given by the testator to you to notify this person of the occurrence of the insured event and the allocation of the payment amount.

What information should be given to the heirs?

The creation of the estate register is one of the most important main duties of the executor: Immediately after assuming office, he must provide all co-heirs with an estate register of the estate objects that are subject to his administration as well as the inheritance debts known to him. The transmission must also take place without a request by the heirs.

The list of estates forms the basis for the heirs to derive their claims to further information, information and invoicing vis-à-vis the executor. If the executor does not create the estate register at all, too late or, despite a warning and deadline set by the heirs, not or not properly, this can justify a culpable gross breach of duty (Section 2227 BGB) and an obligation to pay damages (Section 2219 I BGB) or a reason pose for his dismissal.

If the executor cannot immediately determine all assets and liabilities of the estate, he should first send the heirs a provisional list and update it later. Even if it is doubtful whether certain objects of the estate or testator debts belong to the estate, these must still be included in the estate register; a brief explanation should be provided for this. Valuable items (e.g. personal clothes of the testator or his personal effects) do not have to be listed individually.

The executor does not owe a valuation or valuation by an expert. The executor only has to provide information about the estate, but not about its value. If he can do this without any problems, e.g. through account statements, he should do so for open communication with the heirs.

The executor must provide the information related to the time of his assumption of office - and not related to the date of death of the testator. Of course, it makes sense for the executor to note changes in the composition of the estate between the succession and his acceptance of office in the register, e.g. if estate objects were removed or money was withdrawn from estate accounts during this period.

The estate register must be signed by the executor stating the date of its admission. At the request of the heirs, his signature must be certified by a notary, § 2215 II BGB. Receipts do not have to be attached to the directory, but it is a proper administrative measure that copies of account statements, for example, are attached to the directory.

Every heir can request that he be consulted to compile the list of the estate. However, the co-heirs are not required to be present. At his request, however, the executor is obliged to have the estate register recorded in official form, i.e. by a notary or a local court.

If there is reason to believe that the estate register has not been properly drawn up, the heirs can demand that the executor affirms the accuracy of his information in the estate register in lieu of an oath, §§ 2218 I, 666, 259, 260 BGB.

The register of estates is to be sent to the heirs, as well as to a pledging creditor or a usufructuary beneficiary of an inheritance. Because a person entitled to a compulsory portion or legatee stands “outside” the estate and is only entitled to the fulfillment of their rights, they do not receive the list of the estate.

If the executor delays or even refuses to send the estate register, the heirs can sue for it if necessary.

The costs for the recording of the estate directory are always borne by the estate, § 2215 V BGB. On the other hand, those who request the affidavit from the executor must pay the costs themselves in accordance with Section 261 III BGB.