Ask a lawyer on the topic of Inheritance law

Damages Executor of the Will

December 4, 2009 | 50,00 EUR | answered by Steffan Schwerin

Does the estate have to pay the legal costs if an heir sues the executor for damages and wins? Can the executor be sued for all costs in the damage lawsuit, or does a new lawsuit have to be filed? Please argue with corresponding references and judgments.

Steffan Schwerin

Dear questioner,

I will answer the questions you have asked, taking into account the circumstances described and your input, as follows:

Question 1: Does the estate have to pay the court costs if an heir sues the executor for damages and wins?

If the heir wins the case against the executor, the executor must bear the costs. German procedural law stipulates that the losing party must bear the costs, according to § 91 ZPO.

If there are costs incurred in the course of the proceedings that the executor does not have to bear, these costs must primarily be paid by the plaintiff, in this case, the heir.

Whether the estate can be held responsible for covering the costs depends on the extent to which the heir has acted on behalf of the estate.

If the heir has conducted the proceedings arbitrarily, he must bear the costs alone. However, it is assumed that the heir is conducting the proceedings in the interest of the estate. In that case, the costs must also be covered by the estate.

Question 2: Can the executor be sued in the damages case already for all costs to be borne, or must a new process be conducted?

The costs of the proceedings must be borne by the executor if he loses the case, according to § 91 ZPO. There is no need for a separate process.

However, the extrajudicial costs must be claimed within the ongoing proceedings.

Only if the executor refuses to bear the costs even then, would a further process be necessary. However, this is not to be expected, as the obligation of the executor to cover the costs already arises from § 91 ZPO.

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Best regards,

Steffan Schwerin
Lawyer

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