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End of execution of the will

When does the execution of a will end?

The law does not regulate the exact point in time at which the execution of the will ends. Rather, it assumes that the execution of the will is terminated per se with the completion of all the tasks assigned to the executor. The same applies if a successor for the executor cannot be appointed. Even if the probate court dismisses the appointed executor in a dismissal procedure against the executor according to § 2227 BGB, this does not automatically mean that the execution of the will as an office has ended; rather, as a rule, especially if the heir has appointed a substitute executor for this purpose, he should be appointed.

First of all, what is decisive is what the testator ordered with regard to the termination of the execution of the will. A maximum time limit is only provided in Section 2210 of the German Civil Code, otherwise the time of termination is at the discretion of the testator. As a rule, the complete fulfillment of tasks, especially in the case of an execution, is the end of the execution of the will.

Expert tip from the specialist lawyer for inheritance law:

The executor as a person does not have to separately resign from office in these cases. However, it is advisable to notify the probate court of this, even if this is not required.

Can the heirs reach an agreement with the executor to terminate the execution of the will?

The heirs can also agree with the executor by means of a separate contract that the dispute over the estate - or with regard to individual objects of the estate - is permanently excluded. This prevents the executor from performing his duties permanently, so that the execution of the will is also terminated in these cases. According to the new case law, such an exclusion from disputes can also extend to individual objects of the estate; Once the remaining estate has been dealt with, the execution of the will ends as a whole because the above-mentioned obstacle to the dispute persists (example: the co-heirs agree among themselves that the parental home will not be sold and not dismantled). If the heirs agree with the executor that he resigns his office at a certain point in time or after fulfilling a certain task, such an agreement is permissible within the scope of the freedom of contract. Another question is whether the executor gets a mercantile advantage for this arrangement. An agreement to the effect that the heirs can demand that the executor resign at any time is, however, inadmissible. In this respect, the executor, who in principle has to implement the will of the testator, would go completely into the weal and woe of the heirs.

When does the execution of a will usually end?

If the estate has been used up, e.g. when the executor has paid all of the estate's liabilities from the estate and there are no remaining assets that can be disputed, the will also ends.

Expert tip from the specialist lawyer for inheritance law:

The law does not specify any precise requirements for the end of the will. Therefore, the testator should, in his will, with which he orders the execution of the will and describes the corresponding tasks of the executor, at the same time order that the execution of the will ends with the execution of the tasks. It should also regulate whether the execution of the will as a whole is completed with the conclusion of a certain executor's office or whether it should be continued by a substitute executor.

Wording example "End of the execution of the will"

The execution of the will ends with the fulfillment of all tasks assigned to the executor.

  • The execution of the will ends as soon as the appointed heir dies.

  • The execution of the will ends as soon as the youngest co-heir has reached the age of 25.

If the executor I have named ceases to exist before this point in time, the Netzwerk Deutscher Testamentsvollstrecker e.V., Berlin (www.NDTV.info) should name a substitute executor and notify the probate court of this.

Can the heirs demand the handover of the estate before the end of the execution of the will?

Section 2217 of the German Civil Code (BGB) stipulates that the executor must release individual estate items that he no longer needs for his administrative activities to the respective heirs from his administrative authority. With regard to this subject, the execution of the will ends.

Expert tip from the specialist lawyer for inheritance law:

If the executor sells an estate object, for example to pay off debts, the execution of the will continues on the proceeds as a surrogate (= substitute object).

What happens if the executor dies?

According to § 2225 BGB, the executor's office ends with the death of the executor. So the office does not pass to his heirs. If it emerges from the testamentary disposition in the context of the interpretation or, better still, in the context of the express order of a substitute executor by the testator, that the testator wishes the will to be executed even if the person named by him ceases to exist, the probate court has according to § 2200 BGB to appoint a new executor.

Expert tip from the specialist lawyer for inheritance law:

The more recent case law tends towards the fact that by naming a certain person as the executor, the testator wanted the execution of the will to continue in these cases as well. However, this must always be based on the individual case and, if possible, the presumed testator's will is to be determined within the framework of the interpretation of the will.

What happens if the executor becomes incapacitated?

If the executor becomes incapacitated (e.g. due to a stroke, coma, etc.), his office also ends. The same applies if he is given a supervisor.

Expert tip from the specialist lawyer for inheritance law:

The responsible testator will already foresee these cases in his testamentary disposition and regulate them there by appointing a substitute executor ("in the event that the appointed executor ceases to be active before or after accepting the office, for whatever reasons, I appoint the substitute executor In turn, the executive board of the Network of German Executors (www.ndtv.info) based in 12163 Berlin, Schlossstrasse 26, should appoint an executor as a substitute and notify the probate court of this ").

What happens if the executor resigns or resigns?

According to § 2226 BGB, the executor is free to terminate his office at any time and without giving reasons. He must give notice of termination to the probate court. It is informal, i.e. also verbally, possible. However, he may not give notice of termination at “inopportune times”, otherwise he will be liable for damages in accordance with §§ 2219, 671 II 2 BGB. If the executor resigns his office, the probate court must examine whether a substitute executor will be installed in accordance with the above-mentioned principles (express determination of a substitute executor in the will of the testator, interpretation of the will, etc.).

Expert tip from the specialist lawyer for inheritance law:

If the executor resigns his office, he must return the issued copy of the executor's certificate to the probate court.

What is to be considered when the execution of the will is terminated with regard to the certificate of execution of the will?

After completion of the execution of the will, e.g. after completing the task assigned to the executor, after termination of the office by the executor himself, after a successful dismissal procedure by the heirs according to § 2227 BGB etc., the executor must have the original execution certificate and all of them in his possession hand back any copies of this to the probate court. The background to this is that legal transactions can rely on the validity and ongoing effectiveness of the executor's certificate. If the execution of the will has ended, this trust must be corrected by returning the certificate of execution. If the executor does not return the certificate to the probate court, it can declare the executor certificate invalid and withdraw it, §§ 2368 III BGB, 354 FamFG.

If it remains unclear whether or not the executor has actually fulfilled all of the tasks assigned to him in the processing of the estate, the executor can have the termination of his activity before the trial court, i.e. not before the probate court, clarified by means of a declaratory action. Both he and legal relations need legal certainty about this question, which the executor can establish through such an action.

If, after the execution of the will has ended, it turns out that he must subsequently prove his authority, he can still apply for the certificate of his already ended office after the execution of the will has ended. In practice, however, these cases will be rare, especially if the executor has properly clarified all who are eligible for the estate dispute by sending a copy of his executor's certificate.