What is the “cabeça-de-casal” (executor)?
Upon someone’s death, and if there is an estate to be distributed among the heirs, the “cabeça-de-casal” (executor) will be the entity responsible for informing the Tax Authority of the death and administering the assets of the inheritance.
These assets may include the deceased’s own assets, such as their share in the common property of the couple, if they were married under one of the community property regimes.
The position of “cabeça-de-casal” (executor), as a rule, does not entitle its holder to any remuneration.
In what situations can there be a “cabeça-de-casal” (executor)?
There will always be a of “cabeça-de-casal” (executor) whenever the succession is opened due to death. Additionally, in cases of separation, divorce, annulment, or nullification of marriage, and if the spouses are married under a community property regime, there will be an inventory process aimed at ending the indivisibility in which there will also be a head-of-family. For more information on the of “cabeça-de-casal” (executor) in the context of divorce, refer to our article at this link.
Who should be the “cabeça-de-casal” (executor)?
If there is an agreement among all parties involved, anyone, regardless of their relationship with the inheritance, can be appointed as the “cabeça-de-casal” (executor). The appointment can be explicit, when all heirs directly agree on who should exercise the position, or tacit, resulting from the uncontested exercise of the “cabeça-de-casal” (executor) functions by someone who, under the law, would not be “in the first line” for the appointment.
In the absence of an agreement, the exercise of the position will first fall to the surviving spouse, provided that they are an heir or have a share in the marital property and are not legally separated from persons and property at the date of death. If there is no surviving spouse able to fulfill the role, the function of the “cabeça-de-casal” (executor) will be successively assigned to the executor, the person chosen by the deceased to execute the will, legal heirs who are relatives, or testamentary heirs.
Among legal heirs who are relatives, preference for the position will be given to the heir with the closest degree of kinship, and among heirs with the same degree of relationship, preference will be given to those who lived with the deceased for at least one year. In total equality of circumstances, the function of head-of-family will be assigned to the oldest heir.
If all heirs validly decline or are removed from the position, the court will appoint the “cabeça-de-casal” (executor) after hearing all parties.
Is the “cabeça-de-casal” (executor) obligated to accept the position?
If the appointed person is over 70 years old, they may decline the position without having to invoke any other impediment.
However, if the appointed person is under 70 years old, they can only decline by citing the impossibility of performing the functions due to illness or incompatibility of the “cabeça-de-casal” (executor) position with a public position they hold.
Additionally, if there is an agreement among all parties involved, the head-of-family can be replaced at any time.
What are the functions and obligations of the "cabeça-de-casal" (executor)?
The “cabeça-de-casal” (executor) has broad responsibilities in the scope of estate distribution, and these must be carried out with the utmost care and diligence, refraining from acting for personal gain to the detriment of other stakeholders in the inheritance.
The “cabeça-de-casal” (executor) is responsible for performing all functions associated with the administration of the undivided estate, and, for this purpose, may demand from heirs or third parties the delivery of assets that are part of the inheritance and are in their possession, utilizing, if necessary, the appropriate judicial actions.
The “cabeça-de-casal” (executor) is also tasked with meeting the charges of the inheritance related to the funeral, commemorations, and the administration of the inheritance. For this purpose, they may, as necessary, sell fruits of the inheritance or deteriorable assets that are part of the inheritance. The head-of-family can also collect debts owed to the inheritance, but only when payment can be made voluntarily or when delays might jeopardize the possibility of debt recovery.
The “cabeça-de-casal” (executor) also has fiscal duties, including paying the IMI and AIMI on the undivided inheritance. The “cabeça-de-casal” (executor) must also inform the Tax Authority of the area of residence of the author of the inheritance about their death and submit the inventory of assets.
In case of inheritance distribution through the probate process, it is the responsibility of the head-of-family to submit the initial request to initiate the process, even though other interested parties in the inheritance can also do so under certain circumstances. The initial request should identify the author of the inheritance, the place of their last domicile, and the date and place of death, justify the quality of the head-of-family, and identify the parties interested in the distribution (Article 1097.º CPC, n.ºs 1 and 2).
The “cabeça-de-casal” (executor) must attach to the initial request the death certificate of the author of the succession and the documents proving their legitimacy and the legitimacy of the direct interested parties in the distribution, wills, prenuptial agreements, and existing donation deeds, the inventory of all assets subject to probate, the list of credits and debts of the inheritance, and the commitment to faithfully perform the duties of the head-of-family.
The “cabeça-de-casal” (executor) also assumes the obligation to create an inventory of assets, fully identifying the assets to be distributed. The information to be provided includes the credits and debts of the estate, as well as the respective debtors and creditors, and the individualization of the assets that make up the undivided estate, along with the identification of their respective values.
If any interested party in the distribution dies before it is completed, the head-of-family must proceed with the qualification of heirs.
The “cabeça-de-casal” (executor) is obligated to provide an annual account of their management to the other heirs.
Can the "cabeça-de-casal" (executor) be held responsible if they do not fulfill their obligations?
Yes, if the “cabeça-de-casal” (executor) does not adequately fulfill their functions, they may be held accountable to the heirs of the deceased.
The “cabeça-de-casal” (executor) can be removed from their position at the request of any interested party if they conceal assets or donations from the deceased, report non-existent donations or charges, fail to administer the hereditary estate with prudence and diligence, violate the duties imposed by law, or prove to be incompetent for the role.
Additionally, the “cabeça-de-casal” (executor) will lose any rights they may have over them if they conceal assets of the inheritance.
If the “cabeça-de-casal” (executor) causes harm to the heirs, they may be held liable under the general mechanism of civil liability.
Ultimately, the “cabeça-de-casal” (executor) may face criminal liability if they use assets or money from the inheritance for their own benefit.