Execution of the will by a specially appointed executor

According to German inheritance law, the heirs have power of disposition over the estate at the time of the testator's death. Normally, the heirs take care of the administration and distribution of the estate together. However, a different procedure applies if the testator does not want the estate to be administered and distributed by the heirs themselves, but by an executor. This is not the norm in Germany.

Does the testator have to appoint the executor themselves or can they leave this to someone else?

The testator can transfer the appointment of the executor to a third party in accordance with Section 2198 (1) BGB, who then selects a suitable person and declares the appointment in a publicly certified form to the competent probate court.

In addition, the testator can also authorize the executor appointed by him in accordance with § 2199 para. 2 BGB to appoint a successor executor in the event of the termination of his office. The appointment of a successor executor by the person initially appointed as executor in accordance with § 2199 para. 2 BGB requires the acceptance and exercise of the office by the latter. If the person initially designated as executor rejects the office from the outset and the right of appointment under § 2199 (2) BGB fails solely for this reason, an interpretation of the will to the effect that the person initially designated as executor was also authorized within the meaning of § 2198 (1) BGB as a third party to appoint a (substitute) executor.

Can the testator appoint a substitute executor?

The testator can appoint an substitute executor in accordance with Section 2197 (2) BGB in the event that the originally appointed executor is no longer available. If the testator does not issue any instructions to the contrary, the appointment of a substitute executor also applies in the event that the appointment of the first executor is invalid or if the first executor declines to accept the office. If the testator has appointed a substitute executor or authorized another person to appoint an executor, it is obvious that the execution process does not end in case the first executor is no longer available.

The testator can also appoint several substitute executors. However, he should ensure that his order of precedence is clear. Otherwise, it may be difficult to determine his instruction by interpreting the will.

Does the power of disposition over the estate pass to the heirs if the executor resigns or dies before completing his or her tasks?

If the executor dies or resigns, this initially only terminates the executor's office. This does not mean that the heirs can freely dispose of the estate. However, the termination of the executor's office can in fact lead to the termination of the entire execution process what means that the disposition over the estate pass to the heirs if this was the testator's intention, i.e. if the testator did not appoint a substitute executor and the interpretation of the will shows that the termination of the office of the appointed executor is also intended to pass over the dispositon over the estate to the heirs.

Can the probate court appoint an executor on its own initiative?

If the testator has appointed an executor and this person ceases to be an executor because he or she dies, does not accept the office for whatever reason or resigns from the office, it may be questionable whether the probate court must appoint another person as executor. If the testator has appointed a substitute executor or authorized another person or institution to appoint a substitute executor, this question does not arise.

Pursuant to Section 2200 of the German Civil Code, the probate court can appoint an executor if the testator has requested the probate court to do so in a will. In only a few cases will such a request be explicitly stated in the will. However, a request to the probate court can also be implied if such a will of the testator arises from the interpretation of the will. Case law is sometimes quite generous in assuming that the testator had such an intention and sometimes affirms a request within the meaning of Section 2200 (1) of the German Civil Code (BGB) if the testator “probably would have wished to be appointed by the probate court”.

However, the question of whether there is an implied request from the testator to the probate court depends on the circumstances of the individual case. The judicial appointment of an executor in accordance with Section 2200 of the German Civil Code (BGB) always requires a corresponding request from the testator. In its decision of March 21, 2018 – I-3 Wx 211/17, the Higher Regional Court of Düsseldorf stated:

“If a person appointed as an executor by the testator ceases to be so, the will as a whole must show that the testator intended the execution of the will to be continued or completed until the tasks have been completed. To do this, the reasons that led the testator to make the appointment must be determined, along with whether these reasons would still persist from his point of view if the appointed person were to cease to exist. It is necessary to determine that, taking into account the subsequent situation, the testator would presumably have wanted the appointment of an executor by the probate court.“

Can the surviving spouse appoint a different person than the executor named in a previous joint will?

If spouses have drawn up a joint will, the provisions made may, under certain circumstances, be binding after the death of one spouse. This is the case if the provisions are reciprocal within the meaning of Section 2270 (2) BGB (you can find another article on this on our blog). If there is a binding effect with regard to the appointment of the final heirs (e.g. the joint children) and if the spouses have arranged for the will to be executed and have appointed a specific person as the executor, the question arises as to whether the surviving spouse can replace the executor after the death of the first deceased. This is controversial in case law and legal literature. Some consider the replacement of the executor to be permissible without further ado because it does not lead to additional impairment of the heirs who have been appointed. According to another opinion, the replacement of the executor is generally permissible, but not in the exceptional case where the spouses had certain expectations regarding the person of the executor. As far as can be determined, the Federal Court of Justice has so far only addressed the question in cases concerning the replacement of an executor named in a contract of inheritance. In principle, a testator is still entitled to replace the executor named by him for his estate. Nevertheless, a change of executor may be invalid if the replacement adversely affects the contract heirs, which in turn can only be determined by interpreting the content of the contract. In its decision dated November 4, 2019 – Ref.: 3 Wx 12/19, the Higher Regional Court of Schleswig found that the contractual heir was disadvantaged in that the executor of the will who had been appointed by the surviving spouse retrospectively was to receive remuneration, while the previous executor of the will, who had been jointly appointed by both spouses, was expressly to act without remuneration. The Higher Regional Court of Schleswig saw this as an unlawful burden on the contractual heir. In a decision dated January 2, 2024 – Ref. 137 VI 611/22, the Local Court of Neuss also held that the replacement of the executor can be invalid if it results in the contractual heir being disadvantaged. According to the District Court of Neuss, a disadvantage can be assumed if the surviving spouse appoints the new executor from among the co-heirs, whereas the spouses had previously jointly appointed a “neutral person”, e.g. a lawyer or tax advisor.