Two Confused Concepts in our Inheritance Law: Estate Administrator and Executor of Will

Estate Administrator and Executor of Will

Firstly, it is useful to start with the definitions of the executor and estate administrator. The concept of estate administrator is defined in Article 592 of the Turkish Civil Code No. 4721 ("TCC"). Although the law refrains from providing a strict definition, it indicates that the administration of the estate can be entrusted to an individual in cases listed in the article. Upon examining the situations mentioned in the article, it can be seen that the appointment of an estate administrator is exceptional and is carried out when there are obstacles to determining to whom the estate will be distributed with certainty. In this sense, it can be said that the appointment of an estate administrator is a form of precaution that the judge of the peace court takes.

On the other hand, the executor has a broader regulatory scope in TCC. The fifth division of the second section of the first part of the third book of the law, titled "inheritance law," is entirely dedicated to the executor. The concept of the executor, which was much more narrowly defined in the repealed Law No. 743, has now been thoroughly regulated in accordance with contemporary counterparts.

Article 552 of TCC defines the duties of the executor and provides a description. According to this article, the executor is the person appointed by the testator to carry out all necessary procedures to fulfill the last wishes of the deceased and is authorized and responsible for that purpose.

In the second paragraph of Article 592 of TCC, while referring to the executor, the similarity between these two concepts is highlighted. Accordingly, if the testator has appointed an executor who has full authority over the entire estate to fulfill the will, unless there is a significant obstacle, the management of the estate is entrusted to them. In this case, it can be said that there is a specially qualified estate administrator for the executor. However, the legal nature of the executor's duties is not limited to this. Firstly, an estate administrator is appointed by the judge of the peace court as a precaution to diligently manage and protect the estate until its distribution when it is not certain to whom the estate will be distributed. On the other hand, the executor is responsible for fulfilling the last wishes of the testator, and they act in accordance with the instructions of the testator. While an estate administrator must be impartial in managing the estate, the executor is not impartial; they act and perform tasks according to the testator's wishes. In fact, Serozan considers the executor as a post-mortem representative of the testator due to these qualities. In line with this perspective, doctrine bases the liability of the estate administrator on guardianship principles and the liability of the executor on agency rules.^{[2] [3]}

Examples Where Concepts are Confused with Each Other

Although the appointment of the executor by the testator and the notification of this duty by the judge of the peace court often leads to confusion between the two roles. Many decisions of the Court of Cassation show instances where the judge of the peace court wanted to appoint an estate administrator but appointed an executor instead, or where the appointed executor did not fulfill their duty in line with the testator's wishes or was unable to carry out the duty for some reason, and the judge appointed another person as the executor. Despite such cases, the Court of Cassation frequently states that the duty of the judge of the peace court is limited to merely opening and reading the will and taking measures if necessary. If the testator has appointed an executor, the judge's authority is limited to notifying that person of their duty (Court of Cassation, 2nd Civil Chamber, 03.05.2010 – 5896 – 8739; Court of Cassation, 2nd Civil Chamber, 10.06.1982, 4696 – 5208; Court of Cassation, 2nd Civil Chamber, 24.06.2002, 6124 – 8396; Court of Cassation, 2nd Civil Chamber, 19.10.2006, 6115 – 14304).^{[4] [5]}

The question of whether the heirs have the right to appoint an executor has also been debated, in addition to the issue of the appointment of the executor by the judge of the peace court. Although the Court of Cassation later ruled with consistent decisions that such an opportunity does not exist, it once issued a mistaken decision stating that if an executor is not appointed in the will or if the appointed executor does not accept the duty or becomes unable to fulfill it for any reason, the heirs can unanimously appoint an executor (Court of Cassation, 2nd Civil Chamber, 14.7.1982, 5704/6311- YKD 1983, Vol. 9, Issue 1, p. 42). The fact that this decision was made during the period of the repealed law and that there was no detailed legal regulation on the executor in the legislation of that time led to this erroneous decision.

Conclusion

In conclusion, although the estate administrator and the executor have the authority to act on the estate, their roles differ in terms of their sources. Estate administration is a precautionary measure that the judge of the peace court takes at their discretion, whereas the executor is entrusted with the exclusive wish of the testator. Neither the judge nor the heirs have the authority to decide on behalf of the testator except for this wish.