Research On Duties Of Executors

The executor refers to a civil subject designated by the will or the court for the purpose of realizing the contents of the will,who enjoys the legal identity independent of the decedent and heirs.According to their duties,executors can be divided into management liquidation executors and supervision preservation executors.The executor shall have the right and obligation to perform his duties.The duties of executors include static duties and dynamic duties.On the one hand,the executor is mainly responsible for the liquidation of the estate,the management of the estate,the payment of debts,the division of the estate and litigation and so on.The executor shall have the right to apply for publicizing the declaration of claims on the estate and make a list of the estate;enjoy the right of administration of the estate in accordance with the will and the law,and manage the sole proprietorship and partnership through the agency mode or the trust mode,but shall be bound by the relevant commercial law;pay off the debts in accordance with the legal order after determining all the debts of the estate;divide the estate in accordance with the will and the time prescribed by law,divide the estate according to the statutory division rules in the will;divide the intestate according to the joint successor agreement or legal division rules;only the executors can ask for the execution of their right to administer the estate.The estate creditormay claim against the heir or executor on claims relating to estate administration.On the other hand,executors should perform their duties normally,and bear the consequences if they violate their duties.The executor's duty starts from accepting to ending the post.The executor performs his duties according to his Rechtsschein.He can obtain the trust of a third party when dealing with the estate affairs according to the rights certificate issued by the court.If the executor is obstructed by the heirs,legatees or banks,he has the right to ask the court to remove obstruction.If the executor violates his duties and causes damage to others,he shall be liable for breach of contract or tort.If the executor fails to perform his duties or has a major reason,the interested party shall have the right to apply to the court to dismiss him.The Civil Code of China has initially improved the provisions of the executor's duties through the system of administrator,but it need to be interpreted or improved due to some issues are not yet clear.In accordance with Article 1145,the executor is transformed into an administrator of the estate,and his estate management authority is automatically extended to the entire estate,not limited to the inheritance of the will.According to Article 1147,it can be inferred that the executor of China enjoys an independent legal status.As for the specific legal relationship between the executor and the heir,it may be advisable to use the specific provisions of the agency and commission contract in The Civil Code.Article 1147 The authorization ofthe estate administrator shall be interpreted as an exclusive authorization,excluding the entity management rights and litigation enforcement rights of the heirs and their agents.The act of the executor prosecuting and responding in his own name is one of the “implementation of other necessary acts related to the management of the estate” in Article 1147 Item 6.If the executor's duties are terminated due to the death,termination,loss of civil capacity or completion of duties of the executor,the corresponding provisions of The Civil Code for the termination of the agency or the termination of the entrusted contract may be used.The liability assumed by several persons may refer to the applicable joint trustee joint liability provisions.The Civil Code should add the start of the executor's duties and resignation and dismissal of the executor,build a executor's certificate system,and distinguish the responsibilities of paid execution and unpaid execution,improve the estate list system and the estate debt settlement system.