The executor is the individual appointed by the testator to implement the provisions of their will, ensuring their wishes are fulfilled. Pursuant to Article 893 of the Civil Code, only those of legal age with the capacity to enter into binding obligations may serve in this role.
Duties of the executor
The purpose of the executor is to carry out the testator’s instructions. It is a voluntary role, meaning no justification is required to decline the appointment.
However, once the role has been accepted, the executor has a fixed timeframe within which to perform their duties, in accordance with the testator’s instructions. If no such provisions have been made, the executor must complete their functions within a maximum of one year from the date of acceptance. The law itself anticipates the possibility of extending this period, either as provided in the will or, failing that, for one further year or for such time as may be necessary in light of the circumstances of the case.
Termination of the executor’s role. Absence of specific grounds for removal
The termination of the executor’s appointment is regulated under Article 910 of the Civil Code, which provides for the following circumstances:
Death of the executor
Naturally, the death of the executor brings the role to an end, as it extinguishes the legal personality of the individual charged by the testator with carrying out their final wishes.
Inability to act
This includes both legal disqualification and physical impediments (such as illness) that prevent the executor from fulfilling their role.
Resignation of the executor
Although the position of executor is voluntary, resignation from the role must be for just cause. Of note is Judgment No. 467/2012 of 11 September from the Provincial Court of Salamanca (JUR\2012\319381), which raises the question of whether an executor who initially declines the appointment may subsequently accept the position:
“In the present case, there is no indication that the executors, who at first refused to accept the role with justification but later reversed their decision, were motivated by any selfish or improper interest, as the will contained no disposition in their favour. It must be acknowledged that what the named executors ultimately did was to follow the testator’s instructions, thereby facilitating the distribution and allocation of the estate among the heirs. Therefore, following the opinion of Luciano, ‘it seems more permissible to revoke the refusal, as a change of mind may — at least theoretically — represent a change for the better.’ Moreover, in this case the change was not only theoretical but also practical, as it enabled the estate to be distributed in accordance with the testator’s wishes, without any demonstrated prejudice to the heirs, legatees, creditors, or third parties as a result of the revocation of the executor’s earlier refusal.”
Removal of the executor
The removal of an executor is often the most complex issue in practice, as the Civil Code does not provide specific grounds for initiating removal due to conduct incompatible with the role (for example, conduct disqualifying the individual from office or wilful misconduct).
To address this legal gap, case law has identified various scenarios. Particularly relevant is the Supreme Court judgment of 13 April 1992 (RJ\1992\3103), which sets out, in broad terms, the grounds upon which removal may be sought:
“In line with the analysis conducted, it must also be noted that removal may result from subsequent events, arising from specific acts and conduct — such as a breach of the prohibition in Article 1459.3 of the Civil Code, which bars an executor from acquiring the assets under their charge, even at public or judicial auction. Furthermore, as in the case at hand, where there is a clear and materially significant conflict of interest involving one executor (with the other two aligned in solidarity) and certain heirs — due to ongoing civil litigation — such discord often exceeds the boundaries of formal legal proceedings and descends into enmity, resentment, and suspicion, notwithstanding the honourability of the executors in question. The required transparency in discharging such a special and sensitive office as executor, the dignity of the appointees, the harmonious coexistence of heirs, and even the intent of the testator as expressed in a will grounded in principles of scrupulous fairness, along with the professional independence of two of the appellants, all demand the removal of any shadow of doubt. The contested judicial decision is thus in full accordance with the law, as the conflicting interests are adequately proven, and the disputes in which they are entangled are sufficiently serious. It is for the courts to make the appropriate and reasoned determination as to the existence of serious and necessary grounds for removal — which is the case here — in accordance with a proper and modern interpretation of the law (Article 3 of the Civil Code), including by way of analogy (Article 4), without losing sight of the nature of the executorship and the duties it entails in managing the estate in accordance with the will of the true stakeholder: the testator. Executors must discharge their role with the utmost diligence, leaving no room for doubt or suspicion in their conduct, which must be impartial and demonstrably effective, unimpeded by the obvious moral and material discomforts that litigation may produce — discomforts which can appear to undermine the essential independence of the executors. This necessitates the rejection of the appeal.”
Termination by lapse of time
Lastly, the role of executor ceases upon the expiry of the term set out by the testator, by law, or, where applicable, by the interested parties. Executors’ powers lapse automatically upon the expiration of the allotted period.
A strategic approach to resolving inheritance disputes
If you are faced with the need to seek the removal of an executor on the grounds that their conduct does not align with the responsibilities of their office, or if you require legal advice regarding a potential inheritance dispute, do not hesitate to contact Ayuela Jiménez. Our expertise in civil law and litigation ensures top-tier representation and counsel to protect your legal and commercial interests.
For a deeper understanding of recent legislative changes affecting the field of succession and procedure, we recommend reading our article on Organic Law 1/2025 on Measures to Improve the Efficiency of the Public Justice Service, in which we analyse new legal developments that may impact probate and other judicial proceedings.
