When an estate includes real property, the role of the executor becomes one of the most sensitive aspects of the probate process.
This is not merely a matter of carrying out the testator’s wishes. In practice, it involves the ongoing administration of assets that have not yet been distributed, but which must be preserved, managed, and ultimately transferred to the heirs under legally sound conditions.
This is precisely where most conflicts arise.
The starting point: administration is not disposition
The executor has broad powers of administration over the estate’s assets. They may act, make operational decisions, and represent the estate before authorities and third parties.
However, this authority has a clear boundary: to administer is not to dispose.
Absent express authorization in the will, an agreement among the heirs, or court approval within the probate proceeding, the executor may not sell, encumber, mortgage, or otherwise dispose of estate assets.
In practice, this distinction is frequently blurred—acts assumed to fall within administration may, in reality, constitute acts of disposition.
Powers of the executor over real property
Within the scope of ordinary administration, the executor may carry out all acts necessary for the preservation and use of real property, including:
- Collecting rents and other proceeds.
- Paying taxes, charges, and necessary expenses.
- Performing maintenance and preservation works.
- Entering into lease agreements within the limits established by law or the will.
- Representing the estate before authorities and third parties.
These powers are essential to ensure that the estate does not deteriorate or lose value during the probate process.
Legal limits: acts requiring authorization
The critical issue is not what the executor may do, but what requires prior authorization.
Among the restricted acts are:
- Selling, encumbering, or mortgaging real property.
- Entering into long-term leases beyond statutory or testamentary limits.
- Performing acts that materially alter the estate.
- Making decisions reserved exclusively to the heirs.
Exceeding these limits exposes the executor to challenges and may render the relevant acts ineffective or void.
Duties in the administration of real estate
The executor’s role is not only defined by powers, but also by strict obligations, including:
- Preparing a formal inventory and appraisal of the real estate.
- Maintaining the property in proper condition.
- Paying all applicable taxes and expenses.
- Rendering periodic and transparent accounts.
- Reporting any risks affecting the value or integrity of the assets.
Failure to comply with these duties may result in removal and civil liability.
Liability: personal exposure of the executor
The executor acts at their own risk.
They may incur personal liability when:
- Disposing of assets without proper authorization.
- Acting negligently in the preservation of the estate.
- Failing to render accounts.
- Unduly favoring one or more heirs.
In such cases, heirs may seek direct compensation for damages, independently of the probate proceeding.
The key: clarity, documentation, and legal structure
Many of these conflicts are preventable.
For heirs, understanding the executor’s legal boundaries is a matter of asset protection.
For the executor, documenting each decision is not a formality it is a safeguard.
A properly prepared inventory, clearly defined powers, periodic reporting, and ongoing legal oversight make the difference between an orderly administration and a prolonged dispute.
Poorly managed real estate within an estate can lead to loss of value, internal conflicts, and litigation that may extend for years.
At Roqueñi Abogados, we advise executors and heirs on the structuring, administration, and protection of real estate assets within probate proceedings—from the initial inventory through to the final transfer of title.