Who can be the executor/executrix of an inheritance?
- Caroline Meijerink
- Aug 27
- 3 min read
The administration of an estate is a process that requires knowledge of the applicable legal rules in Portugal, especially with regard to the role of the executor. In this article, we explain very briefly and objectively the main rules for being an executor, i.e., who can be the executor/executrix of an inheritance, how they are appointed, and what the limits of their powers are.
1. Who can be the executor/executrix of an inheritance?
Portuguese law establishes an order of priority for the appointment of the executor, assigning this role to the persons most closely connected to the deceased. This order is defined in Article 2080 of the Civil Code and follows the following hierarchy:
The surviving spouse who is not legally separated from persons and property, if he or she is an heir or has a share in the couple's property;
The person named as executor in the will, unless otherwise stated by the testator;
Relatives who are legal heirs;
The heirs under the will.
As for number 3, among relatives who are legal heirs, preference is given to those who are closest in degree. Among legal heirs of the same degree of kinship (or among testamentary heirs), preference is given to those who lived with the deceased for at least one year prior to the date of death. If circumstances are equal (between two siblings, for example, who are in the same circumstances), preference is given to the older heir.
If there is disagreement among the heirs as to who should be the head of the family, it is up to the court to decide.
2. Executor: does the eldest son/daughter have priority?
As we have seen, although the eldest son/daughter usually ends up being appointed executor, this is not an absolute rule. Other factors may influence who will be appointed to perform the role of executor in the first place, such as living with the deceased or the ability to perform the duties inherent in the administration of the estate. For example, a descendant who lived with the deceased may be chosen over the firstborn.
3. Who appoints the executor?
In most cases, the appointment of the executor is automatic, following the legal hierarchy. However, in situations of disagreement among the heirs or doubts about who should perform the function, the appointment may be decided by the court. In this case, the interested heirs must submit the request and the reasons for their preference, and even present evidence regarding the reasons for the alleged preference.
4. Can the executor sell assets from the estate?
The general rule is that the executor does not have the power to decide alone to sell assets from the estate without the express consent of all heirs or without judicial authorization. The executor's role is to administer and preserve the estate, and any decision involving the disposal of assets (except for legal exceptions) requires the agreement of the other parties involved in the distribution (see Articles 2090 and 2091 of the Civil Code).
5. What are the executor's duties?
The executor has several responsibilities related to managing the estate, including:
Representing the estate: Handling all administrative matters until the distribution of assets;
Preserving heritage: Ensuring the maintenance and protection of heritage assets;
Prepare the inventory: Identify and list all assets, rights, and debts left by the deceased;
Accountability: Inform the heirs about the administration of the estate and provide accounts whenever requested.
6. Can the executor be dismissed?
Yes, the executor may be dismissed (removed) from his/her function in cases of fraud, negligence, breach of legal duties, or incompetence to perform the duties of an executor (Article 2086 of the Civil Code). Removal may be requested by any interested party and is subject to the presentation of evidence.
7. Final thoughts
The executor plays a crucial role in the organization and management of inherited assets. However, this role requires responsibility, transparency, and compliance with legal regulations. If you have questions or need guidance regarding inheritance, seek the support of a specialized lawyer to ensure fair and effective administration.
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