Chronicle of an executorship for the realisation of an estate: bequeathing what you do not own

1.Thirty years of a relationship and an appointment

The office of executor is voluntary. No one is obliged to accept it and, faced with a task of this complexity, the sensible course would have been to decline it. That is why the appointment was no accident. After more than thirty years of a continuous relationship, personal and professional, the deceased appointed as executor his lawyer, the person who over the years had become the one he trusted above all others. It was the only way of ensuring that a task of this kind would come to be accepted and, once accepted, carried through to the end.

It is worth having in view, from the outset, the complete map of what had to be carried out; only in that way is the difficulty apparent. The testator appointed his two daughters universal heirs in undivided half shares. To one of them he left, as a prelegacy, an undivided half share in a family house in a town in the interior of the province. To each of the two he left a percentage of the net proceeds of the future sale of his principal residence in Barcelona and of a parking space, twenty per cent for one and eighty per cent for the other. To his wife he left the balance of the accounts and deposits held with a particular asset manager, with a guaranteed minimum, providing that, if there were not enough money at that institution, the shortfall would be deducted proportionally from the pecuniary legacies to his daughters. Also to his wife he left the full ownership of a dwelling and a parking space that did not belong to him, because they belonged to two commercial companies in which he held an interest. And he left her, in addition, the furniture and household effects that she herself should choose from the family home, the surplus accruing to the estate. And he left his collection of books and icons to a Benedictine monastery, for exhibition in the abbey museum.

And, over and above all that, he directed the executor to promote the dissolution and liquidation of every commercial company in which he held shares or quotas (“participaciones”), bringing the resulting liquidation entitlements into the estate, and to sell the principal residence so that its price could be divided.

In sum, assets of several million euros, spread between real property in two towns, bank accounts, investment funds, a managed portfolio, a claim against one of his companies, shares and quotas in two commercial companies and an art collection. And a testamentary intention that could not be carried out without first touching everything else.

2.The decisions taken in the will

A will like this one is not carried out well because the executor is diligent. It is carried out well because, on the day it was drawn up, beyond the testator's wishes, the difficulties that compliance with it would raise had already been anticipated and the tools for resolving them had been written into the text itself. This can be seen in four decisions.

The first, the type of executorship. The testator did not appoint an ordinary executor, of the kind whose role is confined to seeing that the wishes of the deceased are carried out. He appointed a universal executor for the realisation of the estate with the powers of articles 429-8 and 429-9 of the “Código Civil de Cataluña” —the Catalan Civil Code—. The difference is not one of nuance. A universal executor for the realisation of the estate takes possession of the assets of the estate, administers them, sells such assets as need to be sold, pays the debts and the legacies and delivers the residue to the heirs. In practice the executor acts as the holder of a power of disposal over property that is not his own, and does so without the heirs having to join in. When the main dwelling of the estate was sold, the buyer bought from an executor acting alone. The heirs appeared only in order to consent to what affected them as prelegatees.

The second, the time limit. The testator extended to two years the period for completing the task, as against the one year laid down by law as a general rule. Anyone who drafts such a clause knows that two corporate liquidations and a property sale do not fit into twelve months. The third, the drafting of the legacy of assets that were not his. The will did not merely leave the dwelling and the parking space; it expressly identified them as belonging to each of the companies. That mention, which a carelessly drafted will would have omitted, is precisely what saves the legacy, because a legacy of property belonging to another —a “legado de cosa ajena”— is valid only if it appears that the testator knew that the thing was not his. And the fourth, the mechanism for taking those assets out of the companies.

3.Bequeathing what you do not own

Once the legacy of property belonging to another is valid, the person charged with it is bound to acquire the property and deliver it to the legatee or, failing that, to deliver its fair value. The alternative would have been to pay the widow money instead of giving her the dwelling, which was precisely what the testator did not want. Here appears the practical difficulty that distinguishes this task from an ordinary executorship. An executor, however wide the powers conferred, has no power whatever over the bodies of a commercial company. The executor cannot call a general meeting or adopt resolutions on behalf of a legal person other than the deceased. And the testator was not the holder of all the capital of every one of them.

The will resolved the obstacle in the only way possible, by imposing a charge on the beneficiaries. It provided that the beneficiaries under the will, in so far as they were holders of shares or quotas in those companies, would be bound to carry out all the acts necessary for the dissolution and liquidation and for complying with those allotments. That is, it turned the heirs' cooperation at company level into a testamentary obligation whose breach would have put their own entitlements at risk.

4.Corporate liquidation as an instrument for carrying out the will

With that backing, the operation was structured as two ordinary dissolutions by resolution of the general meeting under article 368 of the “Ley de Sociedades de Capital” —the Spanish Companies Act, the LSC—. In both it was necessary to remove the management body, to record at the registry that one of the board members was the deceased himself and that he had died, to appoint the two heirs as joint liquidators, to approve the final liquidation balance sheet, the report on the liquidation operations and the plan for the division of the company's assets; and to allot the assets.

There was also a crossing of positions between the estate and the companies that made it necessary to organise the work on both fronts at once. The deceased was a creditor of one of the companies under a loan, a claim which appears among the assets in the inventory, and he was in turn a debtor of the other, a debt which appears among the liabilities. One and the same body of assets therefore appeared on both sides of the liquidation balance sheet, so that the inventory of the estate and the final liquidation balance sheets could not be closed separately or on different bases.

5.Four deeds executed at one sitting

The fitting together in time was the delicate point. So long as the companies were not liquidated, the assets left to the widow belonged to no one within the estate. And so long as they did not belong to the heirs, the heirs could not deliver them. The solution was to chain the whole process together in a single notarial session, with consecutive protocol numbers and all on the same day.

First, the public deed of acceptance and allotment of the estate, with the inventory drawn up by the executor and acceptance under benefit of inventory by the two heirs. That acceptance was not a routine precaution. The heirs were to become, that very day, liquidators of two companies, and the benefit of inventory limited their liability to the assets received as against any contingency that might come to light in those liquidations or afterwards. In that same deed the prelegacies were already allotted, that is, the legacies ordered in favour of those who were at the same time universal heirs, and which are received outside the share in the estate.

Second, the dissolution and liquidation of the public limited company (“sociedad anónima”), with the dwelling allotted to the heirs in undivided half shares. Third, the dissolution and liquidation of the private limited company (“sociedad limitada”), with the parking space allotted on the same terms. And fourth, the delivery to the widow of the legacy of property belonging to another, executed jointly by the executor and by the two heirs, who by then appeared as the owners of the properties.

That fourth deed expressly records that the properties belong to the heirs by allotment under the deeds of dissolution and liquidation executed on this same day, pending registration at the “Registro de la Propiedad”, the Land Registry. The legacy was therefore delivered before the intermediate title had even come to be registered. Without that chaining together, the widow would have had to wait months for two corporate liquidations to complete their passage through the registry.

Behind that concentration there was also a tax reason that should not be lost sight of. The period for filing the self-assessment for the “Impuesto sobre Sucesiones”, Spain's inheritance tax, and the documents for municipal capital gains tax is six months from the death. The deceased died in February and the four deeds were executed in July. All the preparatory work, that is, obtaining the succession documents, drawing up the inventory, closing the accounts of two companies, drafting the final balance sheets and the plans for the division of the companies' assets and preparing the general meetings, had to be completed within that window. It was not only a matter of doing it well, but of doing it in time.

6.A legacy with a guaranteed minimum that charged the other legatees

The disposition in favour of the widow had an unusual structure. The testator left her the balance of the accounts and deposits held with a particular asset manager, but with a guaranteed minimum; he added that, if there were not enough money at that institution to reach that amount, the shortfall would be deducted proportionally from the pecuniary legacies ordered in favour of his two daughters.

It is a legacy that is not exhausted within the deceased's own assets, but reaches into other legacies. The actual balance held with the asset manager turned out to fall a long way short of the minimum. The executor had to calculate the difference and apportion that deduction between the two daughters in the same proportion in which the will distributed the proceeds of the sale between them, twenty and eighty per cent. The deed of acceptance sets out the exercise in detail, reducing each heir's provisional share by the part corresponding to her.

The order matters. Had the executor distributed first and calculated afterwards, the executor would have had to claim back from the heirs money already handed over. The retention was made before any allotment.

7.The sale and the division of the price

The will did not leave the daughters real property, but a percentage of the net proceeds of its sale, after deducting taxes and agency fees. That means that the legacy could not be quantified until the sale had been completed; and that the executor was not a mere liquidator but the seller, which made the transaction harder to follow for some prospective buyers. The dwelling was sold with the deed executed by the executor in the exercise of the office. The heirs appeared solely in order to accept the executor's undertaking to hand over the net proceeds to them and to consent to the sale so far as might be necessary.

The parking spaces followed a different and revealing path. Those that had been allotted to the heirs in the deed of acceptance were sold by the heirs themselves, whereas the dwelling was sold by the executor. On one and the same morning and before the same notary, title to some of the assets and title to the others rested in different persons, and each deed had to reflect that precisely.

8.A modal legacy the legatee was unwilling to take on

There remained the legacy of the collection of books and icons to the Benedictine monastery, ordered by the testator for exhibition in the abbey museum.

A legacy carrying a charge as to destination always raises the same question, what happens if the legatee is unwilling or unable to comply with the mode. In the deed of delivery, the monastery gratefully accepted the legacy, but expressly recorded that most of the collection did not have the artistic value required to be exhibited in the museum and that, even if some item might be, it was in no case undertaking to do so. The executor accepted that and delivered the assets.

The decision was a deliberate one. The mode is not a condition, and failure to comply with it neither prevents the legacy from being acquired nor deprives it of effect automatically. To force the legatee to take on a museum commitment that it itself considered unworkable would have opened up a pointless dispute, would have delayed the winding up of the estate and would have served no better the wishes of the testator, expressed to the executor personally at the time, which were that the collection should end up in that institution.

9.The close

The deceased died in February 2025. The office was accepted in March. The inventory, the acceptance under benefit of inventory, the two corporate liquidations and the delivery of the legacy of property belonging to another were executed in July. The legacy to the monastery, in November. The sale of the dwelling and of the parking spaces, in January 2026. The residue was handed over to the heirs afterwards.

Three things are worth taking from the above. The first, that the universal executorship for the realisation of the estate is a figure of enormous power which in Catalonia remains underused, and one that makes it possible to carry out complex testamentary wishes without submitting every step to the agreement of the interested parties. The second, that in a succession of this size the decisive work is not the signing but the sequence, and that four deeds in the right order resolved in one morning what, in the wrong order, would have taken a year and probably litigation.

And the third, which is the one that really matters. A will may dispose of assets that sit inside companies, but it works only if it also provides the mechanism for taking them out. Here the testator did provide for it, because on the day he drew up his last will work was done on the difficulties that those wishes would meet and the solutions were set down in writing, the type of executorship, the time limit, the express mention that the assets left were owned by the companies and the charge imposed on the beneficiaries to cooperate in the companies' liquidation. Carrying out the office was demanding, but it was possible. And it was possible because the task had been prepared years earlier, with the testator alive.

Alburquerque Abogados|José Manuel Alburquerque|Barcelona 14/02/2026

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