The Executor of the Will in Spanish Law
The executor ("Albacea" in Spanish) is a position of trust and not mandatory in our law, unlike most Anglo-Saxon rights in which the similar figure of the executor is fundamental and mandatory for the effective execution of the testamentary will, and the hereditary heritage management of the executor itself.
In our legal system, in principle, it is the heir or heirs who must execute the testamentary will and manage the hereditary estate, although, in general, the testator may also appoint one or more executors.
In general, since the executor is a guarantor and executor of the testamentary will, the more complex our estate and the aforementioned testamentary will, the more sense it will make to incorporate this figure.
It is also recommended in situations in which there may be several heirs, legatees or other beneficiaries of the inheritance, who may come into conflict regarding the interpretation and execution of the testamentary will.
Also, in the framework of minor or disabled heirs, it can be a support figure and can also be key in those wills that include the creation of a foundation or provisions in favor of non-profit entities.
It should also be valued, appointing executors, indicating, however, that they should only exercise said position in the event that the heirs or the heirs and legatees of legal age do not reach an agreement in relation to the execution of the testamentary will, thus leaving the figure as a subsidiary mechanism that would allow the execution of the will if there was a conflict between the beneficiaries thereof.
In the event that we name people from our family or friends, we can consider naming two or more who act jointly (that is, they must make decisions jointly) to try to ensure the most efficient performance possible, and even express the wish that they can delegate part of their functions to the professionals they deem appropriate.
Regarding the question of the remuneration of the position, if a professional profile is chosen, the position is usually remunerated, based on professional fees and based on effective dedication. In any case, expressly determining in the will the gratuitousness of the post or fixing its remuneration is a substantial issue, and it is a mistake that is made on many occasions not to address this issue. In any case, we should also save that the executor can recover the justified expenses that he incurs in the exercise of his functions. Finally, in the event that the position is remunerated, it is essential to analyze the taxation linked to said remuneration, an analysis in which the amount of the same will be relevant to determine the nature of its taxation.
In general, our legal system allows the position of executor to be held by beneficiaries of the inheritance, whether they are heirs, legatees or others. If it is a professional who also collaborates in the preparation of the will itself, or a close member who knows said will, he will have a greater facility to fulfill his function given the knowledge he will have about the true intention of the testator.
In general, the executor is usually given the power to interpret the succession will, seek compliance with all the provisions contemplated in the will, comply with the legacies, charges or conditions, carry out an inventory, appraisal, partition and adjudication of the hereditary assets.
It is also important to point out that, in the absence of an indication of a specific term for the executor to comply with the entrusted functions, the applicable supplementary law may set a maximum term, so it is again relevant to analyze the applicable norm, and address this issue specifically in the will, depending on the specific actions that, if any, have been entrusted to the executor.
In conclusion, the figure of the testamentary executor, in its different variants, within the framework of the family business, can be very useful to try to minimize succession conflicts. For this, it is necessary to analyze the specific regulatory framework applicable and it is advisable to regulate, as far as possible, the scope of action, the term and form and the remuneration of the position, where appropriate, without forgetting that, by the very nature of office, the essential requirement will be that the person or persons named have the absolute confidence of the testator, since they will be the ones who must ensure compliance with his will.