What is the role of a will executor in Switzerland?

When you write your will, you naturally think about how your assets will be distributed among your heirs. But have you considered who will actually ensure your last wishes are carried out? This is precisely where the executor of your will comes in, a key figure in the estate planning process, too often overlooked. In Switzerland, this role is of particular importance and offers substantial guarantees to ensure your testamentary provisions are faithfully respected.

Let's explore together this essential role, its legal outlines, and the reasons why you should seriously consider designating one in your will.

1. The executor of a will: definition and legal basis

What is an executor of a will?

The executor of a will is a person appointed by the testator in their will to ensure that their last wishes are carried out properly. Under theart. 517 CCYou can entrust this task to one or more trusted individuals, whether it be an heir, a relative, or even a professional such as a notary or a lawyer.

This role constitutes a specific mandate that arises from the will and takes effect upon your death. The executor acts as a neutral and impartial intermediary between your wishes and their practical implementation.

Please note: Contrary to popular belief, the executor of a will does not automatically inherit your assets. Their role is strictly functional and temporary, limited to the execution of the will.

The Swiss legal framework

The Swiss Civil Code specifically regulates this function in Articles 517 to 522. These provisions define the conditions of appointment, powers, duties, and term of office. It is worth noting that this legal framework offers considerable flexibility to the testator while protecting the interests of the heirs.

The art. 518 CC Specifically, it states that the executor of a will must be a person capable of exercising their civil rights. Therefore, you cannot appoint a minor or a person under general guardianship to fulfill this role.

2. The duties and powers of the executor of the will

The main missions defined by law

Pursuant to Article 518, paragraph 1 of the Swiss Civil Code, the executor's fundamental role is to "represent the estate and take the necessary steps to carry out the wishes of the deceased." In practice, this general formulation encompasses several specific responsibilities:

• Estate administration: The executor temporarily manages the estate assets until their final distribution among the heirs.
• Debt repayment: He ensures that the deceased's debts, funeral expenses, and estate charges are settled.
• The distribution of assets: He organizes and prepares the distribution of assets in accordance with the testamentary provisions. The distribution must be agreed upon by the heirs; the executor ensures its implementation and the execution of the deceased's wishes.
• Legal representation: He can act on behalf of the estate in legal proceedings, both as plaintiff and defendant.

Extended powers in management

Article 518, paragraph 2 of the Swiss Civil Code grants the executor of a will fairly broad administrative powers. In particular, they may:

• Taking possession of the inherited assets
• Manage assets appropriately (collect receivables, manage bank accounts, continue business activity temporarily)
• Liquidate assets if necessary to settle debts
• Representing the heirs in transactions related to the inheritance

Important: These powers can be expanded or restricted by the testator in their will. This allows you to precisely tailor the role of your executor to the complexity of your financial and family situation.

Concrete example

Imagine you own a valuable art collection and wish to sell some pieces to fund your grandchildren's education. Your executor can have the artworks appraised, organize the auction, invest the proceeds, and ensure they are used according to your instructions. Without an executor, this task would fall to all the heirs, potentially leading to disagreements and delays.

3. The appointment and acceptance of the position

How to appoint an executor of a will?

The appointment of an executor must be included in your will. Whether it is a holographic will (written entirely by hand), a public will (received by a notary), or an oral will (in exceptional circumstances), you must clearly identify the person chosen and, ideally, specify the extent of their powers.

It is strongly recommended to:

• Obtain the prior agreement of the person you wish to appoint
• Appoint a substitute executor in case the first executor is unable to act.
• Clearly define the specific tasks if they exceed the standard legal framework
• Plan for a salary for this position, especially if it involves a significant amount of work.

Acceptance of the position

According to Article 517, paragraph 2 of the Swiss Civil Code, no one is obligated to accept the role of executor. The appointed person has 14 days from the date of official notification to declare whether they accept or refuse this mandate. Failure to respond within this period constitutes a refusal.

Once accepted, the position obligates the executor to perform their duties diligently and faithfully. However, they may resign later for just cause, including illness, workload, or a conflict of interest.

Please note: Some cantons require that acceptance of the position be formally confirmed with the supervisory authority (usually the adult and child protection authority). This formality ensures the legal security of the situation for all parties.

 

4. The duties and responsibilities of the executor of the will

The obligation of diligence and loyalty

The executor of a will is bound by a duty of loyalty to the deceased and their heirs. They must act with due care in the performance of their duties, as specified in Article 518, paragraph 3 of the Swiss Civil Code. In practical terms, this means that they must:

• Managing inherited assets responsibly
• Keep accurate records of all transactions carried out
• Regularly inform the heirs of the progress of his missions
• To act in the interest of the estate and not in one's own personal interest

The obligation to report

Under the'art. 519 CCThe executor of the will must report on their management to the heirs and the supervisory authority. This obligation includes submitting a detailed inventory of the estate's assets and a final report on the execution of the will.

Personal responsibility

The executor of a will is personally liable for any misconduct in the performance of their duties. If they cause harm to the estate or the heirs through negligence or mismanagement, they may be required to compensate them. It is therefore essential to choose a reliable, competent, and conscientious individual.

5. The duration and end of the function

A temporary mission

The role of executor is not perpetual. Article 519, paragraph 1 of the Swiss Civil Code stipulates that it normally ends when all duties have been fulfilled and the will has been fully executed. In practice, this can take anywhere from a few months to several years, depending on the complexity of the estate.

Other causes of cessation

The function may also end under other circumstances:

• The death of the executor of the will
• His resignation for just cause
• His dismissal by the supervisory authority in the event of serious misconduct
• The expiry of a period set by the testator

Important: If you have appointed several executors, they must generally act jointly, unless otherwise stipulated in the will. This arrangement can offer greater safeguards, but it can also delay certain decisions.

6. The executor's remuneration

Contrary to popular belief, the executor of a will is entitled to fair compensation for their work, in accordance with Art. 517 para. 3 CC. You can specify the amount of this compensation in your will, or allow the supervisory authority to determine it based on the importance and complexity of the tasks performed.

In practice, remuneration can be:

• A fixed amount specified in the will
• A percentage of the estate assets (generally between 1% and 3%)
• An hourly wage, particularly when a professional is appointed
• Free of charge, if the executor expressly consents to it

7. Why appoint an executor of a will?

The advantages for your estate

Appointing an executor of a will has many advantages:

• Performance guarantee: Your wishes will be fully respected, even in the event of disagreement among heirs.
• Neutrality: An impartial third party can ease family tensions.
• Expertise: A professional can handle the complex technical aspects (taxation, company liquidation, etc.)
• Time saving : The heirs are relieved of heavy administrative tasks.
• Protection of vulnerable beneficiaries: The executor safeguards the interests of minors or protected persons.

Situations where this designation is particularly recommended

It is strongly advised to appoint an executor of your will in the following cases:

• Complex estates with numerous assets or properties abroad
• Assets including a business requiring specialized management
• Predictable conflict between heirs
• Unusual testamentary provisions (bequests with conditions, foundations, etc.)
• Presence of minor or vulnerable beneficiaries requiring special protection

8. Pitfalls to avoid

Several common mistakes can compromise the effectiveness of appointing an executor of a will:

• Failure to inform the designated person beforehand: She could refuse the position after your death, leaving the estate without leadership.
• To designate a person who is too old or in poor health: She may not be able to perform the function
• Do not plan for a substitute: If the first person designated is unable to attend, the situation becomes problematic.
• Defining insufficient powers: The executor might be blocked from certain important operations.
• Creating conflicts of interest: To designate an heir who might favor his own interests

Conclusion: Secure the future of your estate

The executor plays a fundamental role in ensuring your last wishes are carried out properly. In Switzerland, the legal framework offers considerable flexibility in adapting this function to your specific situation, while guaranteeing safeguards to protect all the interests involved.

Whether your estate is modest or complex, appointing an executor is often a wise precaution. It provides peace of mind for your loved ones during the difficult time of your death and guarantees that your wishes will be faithfully respected.

However, as you will have understood, this designation must be carefully considered and properly formalized in your will. The legal and practical implications are numerous, and poor drafting could create more problems than it solves.

Legal Testa assists you at every stage of your estate planning, including drafting the best possible will and appointing an executor suited to your specific situation. Don't hesitate to seek professional guidance to legally secure your wishes and protect your loved ones.