Executor of the Estate: Powers and Duties

Opinion piece by Bárbara Figueiredo published [in Portuguese] in the Diário de Coimbra newspaper

Both the death of an individual and the divorce of a couple may lead to the division of assets belonging to the deceased or jointly held by the former couple. It is in this context that the legal figure we discuss today emerges: the executor of the estate (in Portuguese, cabeça de casal).

This person is presumed by law to be best suited to manage the estate until its distribution. The criteria for appointing the person to hold this position are set out in law. If the deceased left a surviving spouse, not legally separated and who is either an heir or has a share (meação) in the couple’s assets, the position is assigned to that spouse. In the absence of such a spouse, the role falls to the executor appointed in the will. If no executor was appointed, the position is assigned to the next of kin who are legal heirs and, failing that, to the testamentary heirs. If two people are in the same position, preference is given to the one who had been living with the deceased for at least one year prior to their death, or to the older of the two. In the case of the division of assets following a divorce, the role is assigned to the older spouse.

Naturally, holding this position entails both rights and obligations, as it is the only way to ensure that the estate is managed with the diligence and care required by law.

Accordingly, the executor of the estate may bring legal action against third parties—or even against other heirs—to recover property belonging to the estate. They may also collect debts owed to the estate, provided the payment is made voluntarily or if delay may endanger recovery. Furthermore, the executor may sell perishable goods and use the proceeds to cover funeral costs or administrative expenses of the estate. To meet these expenses, the executor is also allowed to sell non-perishable goods, but only “to the extent necessary”.

Nevertheless, actions with greater impact—such as the sale of high-value assets—generally require the involvement of all heirs. It is worth noting that the executor may, on their own initiative, lease immovable property from the estate, provided the lease does not exceed six years.

However, these powers are accompanied by several obligations. First, the executor must report the death to the Tax Authority (Autoridade Tributária), submitting all necessary documentation. They are also responsible for filing all applicable tax declarations, which vary depending on the type of assets and income included in the estate. Naturally, the executor must ensure the proper care of the estate’s assets and must provide annual accounts to the other heirs, which is only fair given that they are administering property that does not (entirely) belong to them.