13 March 2018

Positions that protect the will of The Testador.

People to be appointed by the testator, depending on what he/she wants to protect are the albacea-ejecutor (executor) and the contador-partidor (divider).

In order to protect the testator’s will, it is essential to grant last will.

With the will we can not only protect our heirs, establishing who are they and what they inherit, but also to make our will to be complied with regarding administration of the inherited assets and even to avoid possible disputes arisen from their partition.

Thus, in order to pursue the above-explained, our inheritance system foresees the appointment of two positions in the last will, each of them with specific functions, even though those can be developed by the same person, which are the albacea-ejecutor (executor) and the contador-partidor (divider).

In relation to the first position, the testator may appoint one or more people in order to act jointly or individually for ensuring the follow up of his instructions in relation to the inheritance object of the matter. Such faculties may be universal or specific (excluding those that correspond to the contador-partidor), and in case anything concrete is expressed, in accordance to the Spanish Civil Code those are: to arrange funeral, to pay the legacies (with the approval of the heirs), as well as to defend the validity of the will and to take the necessary cautions for preserving and safeguarding the assets. A favoured heir may act as an executor, as long as he has legal capacity.

In respect of the second one, likewise the testator may appoint one or more people for acting jointly or individually and his development is limited to valuate assets and to distribute among the corresponding heirs.  In this case, the heir and the administrator cannot be the same person.

The usefulness of one or the other derived from the specific situation of each testator.

For instance, in case the testator has a special interest in developing the funeral in a special manner, or he wats his assets to be administrated for an specific purpose, it will be specially useful to appoint an albacea; on the other hand, if the inheritance correspond to several heirs, it may be specially useful to appoint a contador-partidor who determines who gets what.

When granting a will, it is particularly advisable that the lawyer of the client counts with the inheritance scenario of the client, in order to look out of its fulfilment to the maximum, with the possibility of establishing that the lawyer himself takes over one or both positions, as third  objective part in the inheritance proceeding.

In Pérez de Vargas Abogados we count with specialists in Inheritance Law, who will be able to deeply analyze your case in concrete in order to elaborate the best action plan, pursuant to needs of each client.

Written by

Miriam

Aránzazu Segura Pacheco

[email protected]

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