An executor can be sued

The executor must have full capacity to bind himself. Thus, minors are excluded from such appointment, but legal persons and emancipated persons are included (Article 893 of the Civil Code).

The testator may appoint any person as executor, although this is a voluntary position and the executor is under no obligation to accept. The testator may appoint more than one executor successively or jointly. (Art 891 Civil Code).

The executor will have the functions assigned to him/her by the testator in the will. What the deceased has disposed in this respect will be the main rule by which his actions must be governed. In the event that he has not said anything, the executor will be in charge of:

He is also recognized the possibility of alienating movable or immovable property, even if he has not been authorized to do so by the testator, if there is not enough cash in the estate to pay the funerals and legacies and the heirs do not contribute it from theirs.

How much power does an executor have?

The executor is the person or persons who, at the request of the testator, will be responsible for the proper execution of the will and for securing the assets of the estate. The testator may appoint one or more executors.

What can’t an executor do?

The executor may not encumber or mortgage the assets without the consent of the heirs or legatees, if any. Article 1720. The executor may not compromise or compromise in arbitration the business of the estate, except with the consent of the heirs.

When can the executor refuse his commission?

The appointed executor may freely refuse this office. If he rejects it without proving serious inconvenience, he shall become unworthy of succeeding the testator, in accordance with Article 1028, paragraph 2. Acceptance and resignation of the office of executor.

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An executor can change the will.

The position of executor is a purely voluntary position so that if the designated person does not want to exercise this function, he/she must communicate it within 6 days from the date he/she knows about the appointment (if he/she does not say anything within this period, it is understood that he/she accepts the position).

Executors cannot be those who do not have the capacity to bind themselves, i.e., unemancipated minors or those who are judicially incapacitated. On the other hand, any person of legal age and with full capacity can be an executor.

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What happens if one of the heirs does not want to sign?

Any interested party may request the judge that the heir be summoned to accept or renounce the inheritance within a period of not less than one month nor more than three months. If the heir does not respond within this term, he/she is considered to have accepted the inheritance. The summons can be made after 9 days after the death of the deceased.

When does the role of an executor end?

b) Definitive executor: is the executor appointed in the will, by the heirs or by the judge and who accepts the assignment and therefore has the obligation to carry it out and conclude it within the following year, in accordance with the terms of the law.

When can the executor sell?

In other words, in the exceptional cases in which the executor is authorized to sell, he may do so, with the agreement of the heirs, or in the absence of such agreement, with judicial approval, but always after having taken inventories.

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Substitute executor

b) That it cannot be considered that the accountant-partidor is in any case a person who, obligatorily for the heirs, has to make the partition of the inheritance, since Article 274 of the Compilation is categorical in this respect.

f) Since the plaintiff cannot be attributed the power to defend the will at trial (since he is not the universal executor), his petition (for the provision of funds for procedural expenses) cannot be based on Article 1.728 of the Civil Code, since, apart from the fact that it is doubtful, in doctrine and in case law, the attribution to the executor of the legal nature of the mandate, it could not be proper of such legal figure, in his case, to sell in trial.

In reality, the pronouncements of the sentence are projected on aspects that, after the promulgation of the Compilation, that is to say, in the text of this one, are already quite clear, for what we do not believe interesting to examine each and every one of the affirmations made by the Supreme Court in the course of its resolution.

What happens if the executor is not accountable?

What happens if the executor fails to render an account? … If the executor fails to render accounts as required, or if he or she renders an unsatisfactory account, the clerk of the Superior Court may issue an order against him or her to appear and show cause why he or she did not file an inventory or account.

Who are the legatees?

Legatee: The person who acquires the property in a private capacity and therefore the property to be left must be specified, for example …. The legatee has preference, that is to say that first the legacy is paid and then the remainder will be given to the heirs.

As executor, can I sell a house?

The executor may not alienate (sell, donate, exchange, etc.) the assets of the estate, nor may he encumber them, rent them for more than one year, compromise or compromise in arbitration, nor contract as executor with himself.

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Executor and heir at the same time

It must be asked whether the heirs can dispense with the appointment of the executor or with the acts of the executor. The jurisprudence affirms that the capable heirs of legal age who have the free disposition of their assets can, acting unanimously, depart as they see fit.

However, some authors have spoken of “special mandate” or “special post mortem mandate”. This comparison to the mandate allows to apply to the executor the norms of this contract, to make up for the gaps that the regulation of this figure presents in the Civil Code, which was the traditional position of the Supreme Court.

Lacruz is of the opinion that it constitutes a testamentary position to execute and supervise the execution of the will. The executor must be bound first and foremost to the provisions of the will for the execution of the assignment.

Furthermore, the non-acceptance implies a disconsideration towards the testator, therefore Article 900Cc provides: “The executor who does not accept the office or resigns it without just cause will lose what the testator had left, except for the right he has to the legitimate”. (This is a case similar to that provided for in Article 257Cc in relation to guardianship, which is studied in topic 99).

By Rachel Robison

Rachel Robison is a blogger who collects information on court filings and notices.