The administrator of the estate: who he is and what he does

Quick overview

The administrator of the estate is a person who may be called by the testator to administer all or part of the estate. He or she must do so in the form of a public deed, typically a notarial deed. The administrator takes over the administration as soon as he or she learns of the death of the testator and administers the estate until the confirmation of the acquisition of the inheritance. He/she mainly carries out a simple administration, but in certain cases he/she may go beyond this with the consent of the heirs or the court. If the testator does not appoint an administrator, the estate is administered by the executor of the will, and if neither, then by the heirs.

What is an estate?

The estate consists not only of the property, but of the entire estate, i.e. the set of rights and obligations which, after the death of the testator, pass to the heirs, unless their nature precludes their transfer to another person. In practical terms, this means that an administrator of the estate may be needed not only for real estate or a business, but also where it is necessary to actively deal with liabilities, leases, the operation of the business or other property relations after the death of the testator.

An administrator of the estate makes sense especially where the estate must not be “left to lie” until the probate proceedings are completed.

Who is the administrator of the estate

The administrator of the estate is the person who is called by the testator to administer the estate or part of it. He or she may be a natural or legal person. The law also expressly allows the testator to determine what duties the administrator is to have and whether and how he or she is to be remunerated. The appointment of an administrator of the estate requires the form of a public deed.

An administrator can be very useful, for example, for a business. It should be added, however, that an administrator of the estate is not automatically the same as an executor of a will and that both institutions have their own legal regime. If both are called, the administrator of the estate follows the instructions of the executor of the will and their mutual rights and obligations are judged according to the provisions of the order.

When the administrator takes office

The administrator of the estate shall take over the administration as soon as he becomes aware of the death of the testator, if he knows that he has been summoned. If it becomes apparent only in the proceedings concerning the estate, the court shall inform him thereof. In practice, this is particularly important when action needs to be taken quickly – for example, to ensure the running of the business, to close the premises, to deal with employees or to prevent devaluation of the estate.

What the administrator of the estate actually does

The law says that whoever administers an estate is carrying out its simple administration. At the same time, he or she makes payments from it to provide for the persons entitled to them and delivers to the legatees a report of the bequests that have come to them. It shall settle adult legacies if the court so approves.

In practice, this means in particular the following areas:

Securing and protecting property

This is the basic role of the trustee. In the case of real estate, this may be securing the house, making necessary payments, dealing with accidents or looking after the land. For a business, it may be maintaining basic operations, communicating with accountants, employees or business partners. It is important to remember that a trustee is not a “surrogate heir” or an unlimited manager. Even when administering a business, he or she is still operating within the framework of the administration of the estate.

A typical example from practice: the testator ran a small family business with employees and regular contracts. Without a designated administrator, there could be confusion, unpaid wages and client churn after his death. An estate administrator can help bridge the period until the probate process is completed so that the value of the business does not decline.

Provision payments

The trustee can make provision payments from the estate to those who are entitled to them. The purpose is to bridge the period when the inheritance proceedings have not yet ended but some persons already need the basic means to live. The situation of a dependent wife is an example, although it always depends on the specific legal basis for such a claim.

Links

If the testator has left legacies, the administrator has a duty to notify the legatees of what has accrued to them. The actual settlement of adult legacies is then subject to the approval of the court. This is particularly important where the testator has set aside specific items or sums in the will for non-heirs.

Sale, lease or encumbrance of property

This is a very sensitive area. By law, in administration, something can be disposed of from the estate or used as security if the interest in preserving the value or substance of the property administered requires it, otherwise for consideration. This also applies where the purpose of the administered property is to be changed. By alienation in this case we do not mean theft in the sense of theft. It is a legal term referring to the voluntary contractual transfer of ownership from the previous owner (the transferor) to a new person (the transferee). Typically, it is a sale or a gift.

Translated into common parlance, a trustee may, for example, lease a field so that it is not left fallow, or sell perishable stock on the premises. However, he cannot just sell off an estate out of convenience without reference to the interest of its proper administration.

A typical example from practice: a deceased person is left with agricultural land which, without management, would lose value and cause further damage. Leasing to a local farmer may be the right step if it is aimed at preserving the value of the property.

Going beyond simple management

If an administrator or executor of a will is to take an action beyond the scope of simple administration, he or she needs the consent of the heirs. If the heirs do not agree or if the heir is a person under special protection, the court’s consent is required. This is a substantial correction to the original text: the administrator is not free to act ‘outside ordinary administration’ at his discretion, but only if the legal conditions are met.

In August 2024, the Supreme Court decided a case in which one of the heiresses was appointed administrator of the entire estate. The Court confirmed that the administration of an estate can be entrusted to an heir who has a proven right of succession, even in the event of a dispute over the validity of the will.

How to determine the administrator of the estate

The testator may designate the administrator of the estate by a public deed. This will most often be a notarial deed. In this deed, he or she can also specify whether the administrator will administer the whole estate or only part of it, what his or her duties will be and whether he or she will be entitled to remuneration. The will by which the administrator is appointed may be revoked in the same way as a will.

This is particularly useful in practice for more complex estates. In the case of ordinary estates this is often not necessary. But for a family business, large leases or a larger investment portfolio, for example, appointing a trustee makes good sense.

Can the trustee resign?

Yes. The administrator of an estate can resign at any time. The resignation is effective if it reaches the court. This is practically important because not every trustee is able or willing to serve until the end of the proceedings.

When can an administrator be removed

The court will remove the administrator of the estate without a petition if he or she has seriously breached his or her duties, is unable to perform his or her duties properly or there is some other serious reason. This is an important clarification compared to the original text: the law speaks directly of removal by the court even without a petition, so it is not only the possibility for the parties to file a petition.

In practice, this may be the case, for example, if the administrator neglects the estate, acts in a conflict of interest, fails to communicate for a long time or endangers the value of the estate by his inaction.

Who administers the estate when no administrator is appointed

Here, the law is quite clear. If the testator has appointed an administrator of the estate or an executor of the will, the administrator of the estate administers the estate until the confirmation of the acquisition of the inheritance, otherwise the executor of the will. If the testator has not appointed any of them, the heir shall administer the estate; if there are several heirs and they do not agree otherwise, all the heirs shall administer the estate. If there is good reason for doing so, the court may order other arrangements.

This is also important in practice: the administrator of the estate is not obliged. If the testator does not appoint one, this does not mean that nothing can be done with the estate. It just shifts the administration to other persons according to the legal order.

When is an administrator of the estate really worthwhile

In an ordinary family, where the testator is left with a standard flat, an account and a few movable items, an administrator of the estate will often not be needed. But it makes all the more sense in these situations:

• the testator owned a business or a share in a company,
• the estate includes assets that need ongoing professional management,
• there is a need to ensure the operation of the business quickly or to protect the value of the assets,
• a dispute between the heirs can be expected and the testator wants to avoid chaos,
• the estate includes specific assets such as large investments, forests, fields or rental portfolios.

Summary

The administrator of the estate is a person who can be appointed by the testator to administer all or part of the estate after his death until the confirmation of the acquisition of the inheritance. He or she must be called by public deed and may have specified duties and remuneration. His or her role consists mainly in the simple administration of the estate, in making payments for the provision of the beneficiaries, in informing the legatees and in protecting the value of the estate. He can only act beyond ordinary administration with the consent of the heirs or the court. If no administrator is appointed, the estate is administered by the executor of the will or by the heirs. This is often not needed for ordinary estates, but can be very useful for a business or complex estate.