SUCCESSION LAW IN SPAIN.- The Executor (Albacea) under Spanish Law, comparison with the English Executor.


My name is S.Y. and I would like to have a Spanish Will drafted. I have been told about the possibility of appointing a Spanish equivalent to an Executor and I would like to know the implications of this, and also if I should appoint one or not.

Dear reader,

Thank you for your Consultation.

We can define the Spanish executor: ALBACEA, as the person in charge of DEFENDING / standing up for the last wishes and the estate of the testator.

It is regulated by the Spanish Civil Code under articles no. 892 and the following. According to these articles we can say:

The testator can appoint one or more executor, (or not appoint any) with the necessary legal faculties and capacity, therefore, a minor or an incapable person, cannot be appointed as executor.

When appointing several executors; it can be done severally (which means that each executor can act with independence of the others) or jointly in which case each one must reach an agreement with the others to be able to act. In absence of agreement the majority will prevail.

The Spanish Albacea (executor) will have as many faculties and powers as set forth by the testator. Should the testator not specify any faculties then, the Spanish Albacea will have the ones listed on the article 902 of the Spanish Civil Code:

.- To pay for the funeral and other expenses in accordance with the provisions of the Will or when no provisions are set in the Will, in accordance to the normal practice.

.- To meet cash bequests and legacies in agreement and with consent from the heirs.

.- To guard the execution of the Will and to stand its validity with fairness in a Court or any other place, when necessary.

.- To take the necessary precautions to preserve and safe keep the estate, involving the heirs.

The Spanish Albaceas ( executors) must also inform and up date the heirs about all the actions taken by him.

If we compare the faculties of the Spanish executors (ALBACEAS) to their equivalent in English law, the EXECUTOR, we must conclude, as per the following, that the Spanish ALBACEAS have a lot less faculties and powers:

.- The English Executor can manage the estate received from the deceased as his own, he must pay the pertinent taxes, funeral expenses, etc. The executor has power to sell, administer and divide the assets among the heir at discretion, while being accountable, in front of the beneficiaries, of fulfilling his obligations. In addition every English Will must appoint an executor to administer the assets. The heirs will not, always, be able to inherit directly, but through the executor.

On the contrary the Spanish executor (Albacea), does not have the power to sell or distribute the assets among the heirs, it is not mandatory to appoint one in a Spanish Will and the heirs will always be able to inherit even without the intervention of the Albacea.

Thus, in principle, we can say that naming an Albacea in a Spanish Will does not cause any harm to the heirs or legatees, in fact it will ease implementations of the necessary procedures to enable the heirs to accept the inheritance: this includes preserving and safekeeping the assets, obtaining the necessary certifications, meet bequest, drafting inventory of the estate and so on.

Therefore in those cases where the heirs do not know the applicable Law, are not able to handle the inheritance in person because they live outside Spain or encounter difficulties in the administration of the estate, etc. appointing as Albacea someone you trust, and when possible, expert or knowledgeable in this area of Law, can be very advisable. Besides you can delimit the faculties given to ensure an easier administration of the inheritance for the heirs and in addition the heirs can deal directly with the inheritance, without contacting the Albacea, should they choose to do so .

Should any reader find himself or herself in this situation or similar please do not hesitate to contact us and the appropriate advice will be provided

The information provided in this article is not intended to be legal advice, but merely conveys general information related to legal issues.

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