During your lifetime, you can choose a person who will be responsible for managing your future estate. The appointment of an executor thus makes it possible to simplify the task and to remedy conflicts between heirs. The designated person can be a relative or a professional. Find out what the assignments of an executor consist of and all the subtleties of the role he plays: duration of the assignment, remuneration, sanction in the event of breach of trust, etc.
What is an executor: definition
Organizing the division of your property can be a complicated act, especially if conflicts arise between heirs when the succession opens. To anticipate disputes, it is better to have recourse to one or more executors.
The person appointed by the testator, during his lifetime, to execute his will is called executor (article 1025 of the Civil Code). The executor ensures that the testator’s wishes are respected and himself carries out his last wishes.
How do you designate an executor?
You are free to choose one or more executors from your entourage (a family member or a trusted friend, for example). It can also be a professional (eg: a notary) or an expert in a particular field, depending on the succession. On the other hand, the role of an executor can be overwhelming, some testators prefer to appoint a company to organize the division of its property. In all cases, the executor is not necessarily an heir of the succession. Simply, he must be legally capable and be of legal age.
Regarding the appointment of the executor, it can be done directly in your will or via a written document dated and signed by the successor or made by the notary in charge of the succession. This document takes the form of a handwritten letter or missive letter. It can therefore be a holograph will or a notarial will.
Note that the designated person can refuse this assignment. Before nominating her, it is important to obtain her agreement, specifying that if she accepts, she must bear the costs related to the inheritance (eg: drawing up the inventory). Finally, once the assignment has been accepted, the executor can no longer renounce or be replaced.
What is the role of an executor?
It is the testator who defines during his lifetime the missions of the executor. Therefore, they can be reduced or extended. This is often the case in the absence of descendants or surviving spouses.
For example, the executor can only ensure that the will is properly executed, or on the contrary, take protective measures (inventory of the succession, liquidation of furniture in the event of indebtedness, etc.).
If you wish, your executor can take charge of carrying out your last wishes (sale of real estate, investment of capital, sharing between heirs, etc.). It’s up to you to define its role with precision.
What is the duration of the assignment of an executor?
The mission of an executor ends no later than 2 years after the opening of the will. However, he can request the extension of his mission for an additional year. The request is made to the judge.
Heirs should be kept informed of the activities of the executor. The latter has a period of 6 months following the end of the mission to report. In the event of a breach (inertia, for example), the executor may be penalized, especially if he has received a sum of money in return for his services.
Mission of an executor: how much does it cost ?
You should know that the executor acts as a volunteer, that is to say that he exercises a mandate that is theoretically free. In principle, the executor is not entitled to any remuneration (article 1033.1 of the Civil Code).
However, you have the right to bequeath property from your estate to “thank” it. Often, the testator thanks his executor with a bequest called a “diamond”. In reality, it is a sum of money. The amount of the latter must remain reasonable in view of the testator’s fortune and the services rendered by the executor. If the amount of the « diamond » seems excessive, the heirs can ask the judge to reduce it.
In addition, the executor incurs costs in the exercise of his mission (eg: to draw up an inventory of property). Consequently, it is the heirs of the estate who reimburse it.
The end of the assignment of an executor
In certain situations, the obligations of the executor end:
- if the latter dies. This is a non-transferable mission to heirs;
- in the event of non-compliance with the terms of the will and its obligations.
Appointment of a representative with posthumous effect
When the succession turns out to be complex or in the presence of a vulnerable heir, the appointment of a representative with posthumous effect remains possible. But on condition that the mandate is drawn up by a notary.
The mission of the designated person is then to administer the estate, whether in part or in its entirety. And this, in the interest of the heirs.
The responsibilities of the executor: civil and criminal penalties
In the event of fault that would prejudice the heirs, legatees or estate creditors, the executor may have to pay damages to the victims. The executor will be sanctioned with more complacency if he acts on a voluntary basis, that is to say without being remunerated by the testator.
Generally, the executor is called into question at the end of his mission when he reports on his activity to the heirs of the succession. This questioning is possible only if there is a fault or a prejudice.
The executor who takes advantage of his power to appropriate property incurs penalties. It is therefore a breach of trust which exposes him to 3 years’ imprisonment and a fine of € 375,000 (article 314-1 of the Criminal Code).
Finally, if the executor is a professional subject to ethics, he may be subject to professional and disciplinary sanctions.