Insights

Ningbo will executor and estate manager, who will be in charge of the funeral

Ningbo Author：LuXu WANG

As for who will take care of the affairs after the death, the conclusion is clear: if a person has appointed an executor in his will, then after the succession starts, the executor will be the administrator of the estate; only when there is no designation in the will, it will be the turn of the heirs to elect, the heirs to act together, or even the civil affairs department or the villagers' committee to take over. In other words, the "executor" comes from the will and the "administrator" comes from the law, and in the presence of an executor, both identities fall on the same person.

What are the roles of 1. executor and estate administrator, respectively

the executor of the will is the person appointed by the testator in the will who is responsible for putting the contents of the will into practice. The first paragraph of Article 133 of the Civil Code stipulates: "A natural person may dispose of personal property in accordance with the provisions of this Law and may appoint an executor. "This sentence is the source of the executor system, which has two meanings: first, the natural person has the right to dispose of his personal property by making a will.

the executor of the will can be either one of the legal heirs, relatives and friends other than the heirs, lawyers, accountants, or even an institution. The law does not limit the scope, who to choose mainly depends on the testator's trust.

the administrator of the estate is the person who is responsible for dealing with various affairs related to the estate after the inheritance begins. It is based on Article 145 of the Civil Code. There are four situations: after the beginning of inheritance, the executor of the will is the administrator of the estate; if there is no executor, the heir shall promptly elect the administrator; If the heir is not elected, the heir shall jointly act as the estate manager; if there is no heir or the heir gives up inheritance, the civil affairs department or the villagers' committee of the place where the decedent lived shall act shall act as the estate.

This is a chain of succession: first look at whether there is an executor of the will, and if there is, he will be the top; if there is no, he will be elected by the heirs; if the election is not appropriate, all the heirs will be the joint responsibility; even if there are no heirs or they have given up, they will be handed over to the civil affairs department or the village committee.

2. The relationship between the two: When there is a will executor, the two roles coincide.

Many people will ask: Are the executor of the will and the administrator of the estate two people? The answer depends on the situation. When there is an executor, the two identities are the same person, and the executor automatically becomes the administrator of the estate after the beginning of inheritance, which is the first level of Article 145 of the Civil Code, and also shows that the executor has priority in determining the order.

Only in the absence of an executor will the subsequent scenarios apply: the heirs may elect one, serve as joint executors, or the civil affairs department or the village committee may assume the role. The administrator of the estate that appears at this time has nothing to do with the executor.

As for responsibilities, the intersection of the two is great. The statutory duties of the administrator of the estate are enumerated in Article 1,147 of the Civil Code, from cleaning up the estate, making a list of the estate, to reporting on the estate, preventing the destruction and loss of the estate, to dealing with claims and debts, dividing the estate, and finally, to "carrying out other necessary acts related to the management of the estate". When the executor becomes the administrator of the estate, he performs this set of duties.

3. What exactly do executors and estate administrators do?

Article 1,147 of the Civil Code has six duties, which can be regarded as a job list:

  • Clear the estate and prepare an inventory of the estate. Register deposits, real estate, equity, debt certificates, vehicles, etc. item by item to form a checkable and verifiable list.
  • Report the estate to the heirs. Clearly explain the scope, value, and liabilities of the estate to all heirs.
  • Take necessary measures to prevent the damage and loss of the heritage.Preserve what needs to be preserved, and liquidate what needs to be liquidated, so as to prevent the family’s assets from shrinking due to lack of proper management.
  • Deal with the creditor's rights and debts of the decedent. To recover the debts owed by others and to pay off the debts incurred by the heirs during their lifetime.
  • Divide the estate in accordance with the will or in accordance with the provisions of the law. If there is a will, it is divided according to the rule of legal succession.
  • Perform other necessary acts in connection with the administration of the estate. This item is the bottom line. In practice, it includes representing the estate to participate in litigation, arbitration, mediation, etc.

From cleaning up the heritage to dividing the heritage, there is a complete process in the middle. Take the mature practice of lawyers undertaking inheritance business as an example, which is usually promoted as follows:

  • sort out the list of property and debt of the decedent, and collect the identity information and contact information of the heirs, legatees and interested parties;
  • After the will is made, it is filed, signed or placed in a bank safe deposit box for safekeeping, and the testator is contacted regularly to track the changes of property and interests;
  • After knowing the death of the testator, verify the death certificate, household registration cancellation and other materials to confirm the death fact;
  • Examine the sealed will in the presence of two or more disinterested witnesses or a notary public, verify the identities of the heirs, and promptly notify the heirs and beneficiaries.
  • publish an announcement in newspapers and periodicals to urge creditors to declare their claims and debts;
  • clean up the estate within a reasonable period of time, make a list, guarantee the access of the heirs, and hold a meeting of the heirs to report the status of the estate and make the will public;
  • inform the heirs and legatees to confirm whether they have renounced the inheritance or bequest;
  • Discharge taxes and liabilities in accordance with the statutory subrogation;
  • divide and deliver the remaining property according to the will or legal provisions, handle the handover procedures and sign the handover confirmation;
  • When a dispute occurs, mediation should be carried out first, and if the mediation fails, the division will be suspended, and it will be resumed after the opinions of all parties are unified or determined by the judgment;
  • Terminate the service upon completion of the division or when the agreed-upon conditions are met, and then organize and file the relevant documents.

In this series of procedures, the most prone step to issues is the estate clearance. In practice, disputes often arise from an incomplete inventory of the estate: bank accounts are overlooked, claims are not properly recorded, and the duty to notify known creditors is not fulfilled. Checking whether there are traces and missing registration is the key to judging whether one is responsible or not. The sentence "I don't know" is not a reason for exemption.

4. who is fit to be executor or administrator

The law does not limit the qualifications, but from the practical effect, the candidates mainly focus on three points: ability, neutrality and reliability.

Spouses and heirs are common choices, but they are also the ones that require the most careful consideration. The spouse is often the heir himself, or even the main beneficiary of the estate. Once he (she) acts as the administrator of the estate, he or she may face the conflict of interest of "self-management" when dealing with creditor's rights and debts and dividing the estate. In particular, when the heirs have children before remarriage and external guarantee debts, they are managed by the spouse alone, which is easy to be questioned by other heirs.

The role of family elders or relatives and friends with higher prestige has the advantage of being familiar with the situation and low communication cost, but the disadvantage is that it often lacks legal and financial knowledge, and is easy to be overwhelmed when encountering complex problems such as equity and creditor's rights, or even be held accountable because of improper handling.

lawyers, accountants and professional institutions (such as notarial institutions and trust institutions) have the advantage of being professional and relatively neutral. Lawyers to undertake such business, usually by the law firm and the client signed a contract of entrustment, agreed on the content of the service and fees, and appointed two to three practicing lawyers in order to promote. This obligation of neutrality is the value of a professional institution as an administrator.

In addition, the decedent can appoint multiple executors to act as administrators of the estate together, and can also determine their respective division of labor.

How to designate 5. and how to start estate management

The most convenient way is to write it directly in the will. A standard will usually have a special article to arrange the execution: designate someone (name, identity, relationship with the testator) as the executor of the will; List the rights and obligations of the executor, for example, keeping the will, collecting and registering the estate, confirming and clearing the property after the death of the testator, notifying and convening the heirs, announcing the will and giving an explanation, distributing the estate according to the will, assisting in the formalities of transfer of ownership and fund transfer, and filing a lawsuit against acts that hinder the inheritance, etc. It can also be agreed that the executor will first receive the labor fee and the remuneration during the escrow period.

If the executor of the will dies before the testator, the testator had better agree in the will to change the executor in writing, so as to avoid the gap that no one can use. The original will is best to specify the number of copies and custodians, to prevent the whereabouts of the unknown lead to a dispute between true and false.

If there is no will and no designated executor, the order of Article 1145 shall be followed: the successor shall elect the administrator of the estate in time; if the election fails, all the successors shall act together. Jointly assuming responsibility may seem equitable on the surface, but in practice it often leads to a situation where no one takes decisive action or gives their approval, leaving the estate unresolved for an extended period.

If there is a dispute over the determination of the estate administrator, the interested party may apply to the people's court for appointment. This is a way for Article 1,146 of the Civil Code to connect with the special procedures of the Civil Procedure Law: to apply to the basic people's court where the decedent's residence or main estate is located at the time of death, the application must specify the time of death of the decedent, the subject of the application and the specific request, and attach evidence of death; After acceptance, the court will examine and verify the decision to appoint an estate administrator in accordance with the principle of the principle conducive to the estate management. This procedure is the first instance final, the trial time limit is short, suitable for the need to determine the management subject in a short period of time. If the appointed administrator dies, loses civil capacity or is unable to perform his duties, the court may appoint another person on application; if the legitimate rights and interests of the heir, legatee or creditor are seriously infringed, the court may also revoke his qualification and re-appoint him on application.

6. liability for failure to exercise due

The administrator of the estate is not a name. In accordance with Article 1,148 of the Civil Code, an estate administrator shall perform its duties in accordance with the law; if it causes damage to heirs, legatees, or creditors through intent or gross negligence, it shall bear civil liability. In theory, this is fault liability: those who do not take responsibility for the duty of reasonable care, and those who are intentionally or grossly negligent are held accountable. However, in practice, "whether to pay reasonable attention" often depends on whether there is evidence collection, registration and notification. If the traces are not clear, it is difficult to prove innocence.

Correspondingly, the administrator is also entitled to remuneration. Article 1,149 of the Civil Code provides that the administrator may be remunerated in accordance with the law or in accordance with the agreement. Where a lawyer acts as an executor of a will, the remuneration is usually agreed between the law firm and the client in the contract. For other non-lawyer administrators, the remuneration is also subject to agreement or legal provisions.

7. there is no will and no designation, what about the funeral

Most people did not make a will, and at this time it was legal inheritance. The determination of the estate administrator returned to the second to fourth levels of Article 145 of the Civil Code: the selection of the heirs, the joint role, or the role of the civil affairs department or the villagers' committee.

If there is no heir, or the heirs give up the inheritance, the civil affairs department or the village committee of the place where the decedent lived before his death will act as the estate administrator. Accordingly, Article 160 of the Civil Code stipulates that an inheritance that is neither inherited nor bequeathed shall be owned by the State for public welfare purposes; if the deceased was a member of a collective ownership organization before his death, it shall be owned by the collective ownership organization in which he is located.

There is another connection point that is easy to be ignored: Article 150 of the Civil Code stipulates that after the inheritance begins, the heir who knows the death of the decedent shall notify other heirs and testamentary executors in time; if no one knows or cannot notify, the unit where the decedent lived or the neighborhood committee or village committee of the place where he or she lives shall be responsible for the notification. Even if no one takes the initiative to come forward, the law also arranges the mechanism of notification and bottom-up. However, the bottom line is passive after all. The management of the civil affairs department or the village committee only ensures that the heritage will not be left unattended.

8. why high net worth families should be designated in advance

For families with simple assets and harmonious family relations, legal inheritance is often sufficient. However, for high net worth families, remarried families, families with minor children or holding equity in family businesses, the significance of appointing an executor in advance is much more obvious.

One is to reduce competing production. Once the estate is in a vacuum period of no one to manage, it is most likely to secretly transfer ownership, transfer deposits, and conceal valuables. There is a trustee who takes over from the moment the inheritance begins, enabling them to promptly document the current state of the estate and compile an inventory, thereby clarifying at the outset who is authorized to manage these funds.

The second is to prevent the encroachment of heritage. Article 151 of the Civil Code makes it clear that the person who has the estate shall take good care of the estate, and no organization or individual may embezzle or compete for it. However, this provision can only be effective if it is advocated by someone, and the existence of the manager gives a clear subject of responsibility to "look at the family.

Third, it facilitates debt settlement. If the heir has a business debt or guarantee liability before his death, the creditor may come to the door before the estate is divided. The administrator first recovers the claim, pays off the debt in order, and then divides the remaining property, which can draw a clear line between the settlement of the estate and the avoidance of personal property being involved.

Fourth, ensure that the will is executed. No matter how clearly the will is written, it needs to be announced, explained and implemented, especially when it involves long-term upbringing arrangements for minor children, transfer of shares, and escrow of inheritance to a specific age.

Case Reference: When the whereabouts of an heir are unknown or when there is a dispute over the administration of the estate, an application may be made to the court to designate an estate administrator through a special procedure. In some cases, where the whereabouts of some of the heirs are unknown and the remaining heirs are in dispute over the administration of the estate, the court appoints some of the heirs to act as administrators of the estate in accordance with the Civil Code, and determines the candidates by taking into account the wishes of the decedents, their proximity and their ability to facilitate management. Trial court: Siming District People's Court, Xiamen City, Fujian Province, Case No.:(2021) Min 0203 Minte No. 224; Source: Chinese Court 2023 Cases, Marriage, Family and Inheritance Disputes.

9. Frequently Asked Questions

1. Are the executor and the administrator of the estate the same person?

When there is a will executor, and that person is the same individual, upon the commencement of the inheritance, the will executor shall serve as the estate administrator. Only in the absence of an executor shall the heirs elect one or serve jointly as such, or shall the civil affairs department or the village committee assume the role; in such cases, the estate administrator thus appointed is distinct from the executor.

2. If the will does not designate an executor, will there still be an estate administrator?

There will be. If there is no executor, it shall be elected by the heirs in a timely manner; if it is not elected, it shall be jointly held by all the heirs; if there is no heir or all of them give up inheritance, it shall be held by the civil affairs department or the villagers' committee of the place of domicile of the decedent.

3. What should be done if the heirs cannot agree on a successor administrator?

Interested parties can apply to the basic people's court of the place where the decedent's domicile or the place where the main estate is located at the time of death to designate the estate administrator. The court, in accordance with the principle of best serving the administration of the estate, renders a judgment designating the administrator and applies special procedures, with the first-instance judgment being final.

4. Can the estate administrator receive compensation?

Sure. An estate administrator may receive compensation in accordance with the law or as agreed upon. Where a lawyer acts as an executor of a will, the remuneration is usually agreed between the law firm and the client in the contract.

5. If the estate administrator fails to manage the estate properly, are they liable for damages?

Yes. If an estate administrator causes damage to the heirs, legatees, or creditors through intentional conduct or gross negligence, they shall bear civil liability. The key to determining liability lies in whether the party has fulfilled its reasonable duties of due diligence, such as conducting proper inspections, maintaining records, and providing timely notifications.

6. Can anyone serve as an estate administrator?

The law does not set any eligibility requirements; spouses, children, relatives and friends, lawyers, accountants, and professional institutions are all eligible. In practice, however, spouses or individual heirs are prone to be questioned because of their interests, and it is safer to choose a relatively neutral, professionally competent individual or institution if complex assets, debts or remarried families are involved.

10. Practical Insights from a Lawyer

Who will take care of the afterlife? Many families have no leader when the elderly leave. No one can collect the rent, the deposit is taken away quietly, and no one can deal with the creditors. The two roles that address this vacuum are the executor of the will and the administrator of the estate. The key is to clarify the relationship first: if an executor is appointed in the will, the person will automatically become the administrator of the estate after the succession begins; Only when it is not appointed, it is the heir's turn to elect, co-act, or even the civil affairs department or the village committee to take over. In other words, the executor derives from the will, while the administrator of the estate derives from the law; when an executor is appointed, both roles may be vested in the same person.

In terms of operation, the safest thing is to appoint a credible executor in the will before his death, which can be relatives and friends other than the heirs, lawyers, accountants, or even institutions. The law is not limited, but mainly depends on trust. When making the designation, clearly specify the scope of their responsibilities and whether they will receive compensation, to avoid any posthumous doubts from your family about the basis for their authority. If no specific person is designated, the heirs shall promptly elect a representative and record their written consent by signature; if they cannot reach an agreement on the election, all heirs shall jointly assume the responsibility. Where there is a dispute over the determination of the administrator, the interested parties, including heirs, legatees and creditors, may request the court to appoint that the estate not be reduced or lost in the absence of responsibility.

In practice, high-net-worth families, families with multiple children, or families that own corporate equity and business assets should, above all, designate a trustee in advance. The duties encompass a complete process, ranging from estate clearance and inventory preparation to reporting the status, preventing damage or loss, settling claims and liabilities, and ultimately distributing the estate. If the administrator fails to fulfill their duties, they shall be held liable; if they do fulfill their duties, they are entitled to remuneration. It is suggested to file and seal the will after it is made, and contact and track the changes of property regularly. If there is no arrangement before death, the family behind you should elect or jointly take over as soon as possible. Don't wait until the estate is transferred and the debt is due to be remedied in a hurry. At that time, many certificates are difficult to recover.