To what extent can the executor dispose of the house in the non-divided inheritance?

Sale of the house in the inheritance by the executor

08 / Feb

An executor is a person usually appointed by the testator, the deceased person, who has the duty to manage the inheritance and take all actions necessary to fulfil the last wishes of the testator.

This may include allocating the assets to the heirs, donating part of the inheritance to charity and/or paying all the debts of the deceased before the distribution of the inheritance. Therefore, when the executor is in charge of the inheritance, it is an undivided estate: an estate that has not yet been allocated to the heirs or legatees.

Types of executors

The testator may appoint a special or general executor. In the first case, the testator limits the executor’s powers to specific duties, such as, for example, only paying debts and leaving the division of the inheritance to the heirs themselves. In the case of a general executor, the executor acts in the entire estate without his or her duties specified in the will. He or she will do everything necessary to fulfil the last will of the deceased.

Sale of the property by the executor

Now that we know what an executor is, it is time to focus on the case before us. May an executor sell the Spanish property belonging to the undivided estate without the intervention of the heirs? To answer this question, it is necessary to look carefully at the inheritance law applicable to the estate. Although the property is located in Spain, foreign law may apply. In this article, we will look at Spanish, English and Dutch law.

In Spain, the executor may sell a property as long as he is explicitly authorized to do so in the will. That is, if the testator states in his will that the executor can sell the house, he can do so. However, he cannot sell the house just like that, but only to fulfill the last wishes of the testator. If the will can be fulfilled without selling the house, it should remain in the estate, even though the executor has the power to sell.

Under Dutch law, there is a more limited authority to sell the property. According to this regulation, the house may only be sold if it is necessary to pay the debts of the testator. In this case, the testator does not have to specifically authorise the executor as the law itself regulates this authority. If there are no debts that force the executor to sell the property, the executor can only sell the property to a third party with the cooperation of all heirs.

Under English law, the executor becomes a trustee, who can manage and dispose of the assets. This means that the executor can sell the property to a third party without the intervention of the heirs. Clearly, even in this case, the executor must always act to fulfil the last wishes of the testator.

Selena Escandell Beutick