Law Lessons - Notes - Testamentary Executors PDF

Preview

Summary

Download Law Lessons - Notes - Testamentary Executors PDF

Description

Succession Law

Law Lessons & More ©

Testamentary Executors (Articles 762 – 778) What is a testamentary executor? A testator may elect to nominate a testamentary executor (or more than one) in his will whose function will be to ensure, that after the testator’s death, the latter’s estate is distributed in line with his will. It’s not obligatory to nominate a testamentary executor. Article 762 begins by saying that “it shall be lawful for a testator to appoint one or more testamentary executors. Such person may be any person, even a person who is one of the beneficiaries in the will and/or a person related to the testator. The only impediments are found in Articles 763 and 764 which respectively prohibit a person who is under a disability to contract obligations, and a minor1. What happens once the testator dies? After it is confirmed that the testator has died testate and that he has nominated someone as his testamentary executor2, such person has to decide whether to accept the office of testamentary executor or not. Article 765 provides that “it shall not be lawful for any testamentary executor to intermeddle with the administration of the estate before he is confirmed by the court of voluntary jurisdiction of the island in which the testator resided at the time of his death”. The confirmation must take place by a Court decree after an application to that effect is made by the testamentary executor in which he formally asks the Court to appoint him as such, and under those terms and conditions that the Court deems fit. Article 766 (1) further provides that “the court shall not confirm the testamentary executor before he shall have entered into a recognizance in the records of the court, with hypothecation of his property to be registered in the Public Registry, faithfully to carry into effect the will of the testator, and to render an account of his administration every year or once only, as the court shall, according to circumstances, direct”.

1

Even if his parents, tutor or curator are willing to give their consent. Naturally, this will be ascertained after the usual testamentary searches are carried out to the satisfaction of all interested parties. 2

Dr. James Grech LLD

www.lawlessons.com.mt

Succession Law

Law Lessons & More ©

This is a very important notion. Since the testamentary executor will be taking the assets of the testator in his own administration, there must be a proper safeguard for the heirs that the said testamentary executor will not abuse of his position. For this reason, the Court will order such person to give a hypothec on his personal assets up to the amount of the value of the deceased’s estate. To soften the previous sub-article’s repercussions, Article 766 (2) does allow the Court, on the demand of the executor, to limit the amount for which his property is to be hypothecated. Reference must also be made to Article 769 which provides that “the executor may, pending the procedure in confirmation, perform such acts as cannot without prejudice be delayed, and take such measures as are necessary for the preservation of the estate”. The testamentary executor must be careful to only perform those actions which are absolutely necessary and urgent, as otherwise he would be intermeddling with the affairs without having been confirmed by the Court. One has to bear in mind that the Court may refuse to confirm a testamentary executor if it has valid reasons for doing so, for instance if he fails to provide the hypothec required by the Court.

The Inventory and the Rendering of Accounts Article 767 provides that it shall be in the power of the court, before confirming the executor to require him to make up an inventory of the property which he is charged to administer, OR, a statement of such property to be verified by his oath , unless he shall have been exempted from making such inventory or statement by the persons to whom the property devolves, wholly or in part. As one can note, the making of an inventory is not a sine qua non but it’s something that the Court has decide upon when confirming the testamentary executor. Very often, the Court will be satisfied with a declaration on oath made by such person in terms of law and will not require the full inventory. Alternatively, there may be situations where the heirs themselves have full faith in the testamentary executor and therefore they themselves request the Court to exempt him from doing either of the two options allowed by law. On the other hand, the rendering of an account is a sine qua non and must always be done by the testamentary executor at the end of his office. Article 768 says that even if the testator himself had exempted the testamentary executor from rendering an account, such exemption shall be invalid and inoperative. Power of the Testamentary Executor to Sell Property

Dr. James Grech LLD

www.lawlessons.com.mt

Succession Law

Law Lessons & More ©

The law provides to what extent the testamentary executor may sell property belonging to the estate. Article 771 (1) provides that the testamentary executor may, for the purpose of paying the debts of the estate or of discharging the legacies, in the absence or insufficiency of funds in the estate, collect sums owing to the estate, or, in default, sell property. Art. 771 (2) Such sale shall be made by public auction, unless the heirs agree, or the court, on the application of the executor, allows, that the sale be made otherwise. It is thus clear that the testamentary executor may only sell if there are debts or legacies to be paid/discharged and the liquid assets of the estate are not sufficient for this purpose. If this situation arises, he shall sell the property qua testamentary executor and any remaining proceeds from the sale shall naturally accrue to the estate. Regarding the public auction, both the heirs or the Court may elect to avoid it and to opt for an ordinary sale. Interestingly, in terms of Article 772, the heir may also prevent the sale of property belonging to the estate if he offers to pay the debts and discharge the legacies from his own personal property. The heir might opt to do so if he feels that it’s better not to sell the property of the estate. Fee & Expenses incurred by the Testamentary Executor Article 770 provides that the Court may, at any time, grant to the testamentary executor a moderate fee, regard being had to the value of the estate to be administered by him, unless the testator himself shall have made provision as to such fee, or the executor shall have waived his right thereto. The fee will often be a small percentage of the value of the estate. If the fee left by the testator is too little, the Court might still award to the executor a moderate fee over and above what was left by the testator. Also, Article 775 provides that the expenses incurred by the testamentary executor in the discharge of his duties shall be borne by the inheritance. Duration of Office of Testamentary Executor The testamentary executor shall remain on office for as long as the devolution of the estate is complete. In terms of Article 778, if the during this period, the executor dies (or if there are more than one, they all die), the execution of the will shall vest in the heirs3, unless the court of 3

As happens when no testamentary executor is appointed.

Dr. James Grech LLD

www.lawlessons.com.mt

Succession Law

Law Lessons & More ©

voluntary jurisdiction (with the consent of such heirs), or the court of contentious jurisdiction (for just cause on the demand of any interested party), shall have conferred the office upon another person. Article 773 provides that “the office of the testamentary executor shall not descend to his heirs”. One has to bear in mind that very often, the nomination of a person to be a testamentary executor is based on the testator’s trust in such person or knowledge that such person is competent to do so. Thus, extending this to his heirs (who might themselves be numerous!) would defeat the purpose. In terms of Article 776 (1), the testamentary executor may, at any time, renounce his office, even though he shall have already commenced to act as executor. Article 776 (2) also provides that he may on good cause shown be removed from office. Naturally, in both scenarios, he would have to render an account for his acts until the moment of renunciation or removal. Can the testator appoint more than one testamentary executor? Yes. Article 774 provides so. They have to act conjointly unless the testator has authorised them to act even separately (or perhaps the testator has assigned different roles to them). In this case, they shall be each responsible for their own acts only. Finally, Article 777 provides that if one of the executors declines to accept, renounces at a later stage, is removed from office, dies, becomes ill or is absent, then the Court has the right to confirm the remaining executor/s as sole executor/s.

Dr. James Grech LLD

www.lawlessons.com.mt...