Executors of wills have a lot of responsibilities. Becoming an executor is both an honor and an obligation. Here are the basics. Be sure you understand what you're signing up for before accepting. As a general rule, you will be responsible for distributing the deceased's property and settling the estate's debts and expenses.
Introduction
The executor plays a crucial role in implementing the wishes of the deceased, as outlined in the will. The executor is, therefore, the legal representative of the deceased (the testator). He or she has been given the authority to dispose of the assets of the testator as per the will (and the codicil, if any).
Who Can Be an Executor?
Anyone can be an executor. It is usually one of the nominees or the person benefiting from the assets, or a third person (particularly if a dispute is otherwise likely), whom the testator trusts and would like to get involved in distributing the property over to his nominees.
The Necessity of an Executor in a Will
The last will made by a testator, with instructions to dispose of the assets as per his wishes is a most crucial document. Thus, such a will needs a representative to see it through until all the wishes are carried out, as instructed. Although persons forget or neglect to appoint an executor, this is not the best approach, as it is possible that the wrong person may take on the role of executor (usually one or the other nominee or beneficiary).
The right to choose an executor is completely that of the testator. So, it is the responsibility of the testator to name a person suitable to execute the will, after his/her death.
Powers and Duties of an Executor
An executor is a representative of the testator and is legally approved. As for the duties of an executor, it varies depending upon the conditions in the will.
The general duties of the position include the following:
a.Settlement or disposing of the assets as per the requests made in the will;
b.Filing application for a probate when necessary and required (only an executor can apply for a probate of will and he or she needs to be in sound mind and provide supporting documents for the same);
c.Filing cases in court on behalf of the testator;
d.Managing any expenses for the management of properties left by the testator until its disposal;
e.Taking care of funeral expenses from the estate (assets) left by the testator;
f.Preparing an extensive inventory of the assets to be disposed of and maintaining a record of the same;
g.Collecting any debts due to the deceased as well as paying any, from the assets left by the deceased;
h.Issuing an ascent of legacy to the nominee, wherever applicable.
Advantages of Appointing an Executor
There are several thousand cases that are pending in court, all pertaining to property issues between family members.
Such problem arises in two instances:
- When the deceased has not left a will behind (died intestate);
- When the will mentioned one of the brothers or a nominee as an executor.
In the first case, since no will is left behind, the court appoints an administrator to see the will through. The administrator will dispose of the will as advised by the testator. An administrator is also appointed when the executor is not named in the will left by an individual.
In the second case, however, the executor is one of the nominees. Say, for instance, there are two brothers and two sisters, and all of them are nominees. If the will mentions equal portions to each nominee, the executor of the will (say, one of the sons), has the sole responsibility to deal with the disposal of assets.
While the nominee-cum-executor might do it correctly, there are several examples where the nominee and the executor dispose of the assets as preferable to them. This gives rise to conflicts, and many disagreements between the nominees, and thus, brings them to court.
Duties and Responsibilities of an Executor
- Covering funeral expenses using funds from the testator’s estate
- Securing the testator’s death certificate
- Properly interpreting the will and ensuring assets are distributed to the correct beneficiaries
- Compiling an inventory of assets for sale or disposal
- Managing expenses related to all properties until they are disposed of
- Applying for probate when required by law to validate the executor’s authority
- Settling assets according to the will’s instructions
- Handling payments owed by or to the testator
- Maintaining detailed transaction records
- Representing the testator in legal matters, excluding criminal and defamatory cases.
Criteria to Appoint an Executor
- The appointed executor must be at least 18 years old and mentally competent
- Substitute executors will be designated if the original executor refuses to fulfill their duties when necessary
- The appointed executor can be a beneficiary named in the will or a third party, especially if a dispute is anticipated
- The executor should understand that they are responsible for any errors or mistakes, even if they acted in good faith.
Conclusion
Therefore, when making a will, remember that the executor plays an extremely critical role in the execution of the will and that only a neutral third person, who is both responsible and neutral, can do the right thing by all the nominees. Moreover, if no executors are appointed, the court will appoint an administrator, which can take more time (and money).
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Frequently Asked Questions
What is the role of the executor of the will?
The main responsibility of an executor is to fulfil the wishes of the deceased individual as outlined in their will or trust documents.
Is executor necessary for a will in India?
An executor or legatee named in a Will isn't required to obtain probate or letters of administration.
What are the powers of the executor of a will in India?
They have the authority to forgive a debt owed by the deceased, terminate a lease to sell the deceased's property, whether movable or immovable.
Can the executor be beneficiary of the will?
The beneficiary and executor may overlap, especially in cases involving partners or parents. Regarding assets, it's essential for the will to clearly outline their details to prevent any confusion later on.
Can executor and witness be the same person?
No individual, due to their interest in or their role as an executor of a will, shall be barred as a witness to confirm the execution of the will or its validity or invalidity.
Can a will be executed without an executor?
No individual, due to their interest in or their role as an executor of a will, shall be barred as a witness to confirm the execution of the will or its validity or invalidity.
Can a will be written without an executor?
If a Will doesn't designate an executor, the legal heirs must apply for a Letter of Administration in a court with appropriate jurisdiction. This grants beneficiaries the same rights an executor would have provided.
How much is the executor fee in India?
Taking into account these variables, courts typically deem it fair and equitable for an executor to receive approximately 5% of the estate's value, along with an ongoing management fee equivalent to 2/5 of 1% of the average annual value of the estate assets throughout the administration period. The prices may vary drastically as per the scenario. For more information get in touch with our experts today.
Can an executor sell property without all beneficiaries approving in India?
The executor has the authority to sell the property without requiring approval from all beneficiaries. Nevertheless, all beneficiaries will receive notice of the sale, although their approval is not necessary.
What happens if the executor of a will dies in India?
Section 226 explicitly states that if an executor passes away, representation would continue for the remaining executor or executors, as applicable.
Who Cannot be an executor of a will in India?
An executor becomes unsuitable to perform his duties if there is either a conflict of interest or some form of serious misconduct. As regards misconduct, this must be very serious in nature, leading to the estate suffering as a result of the misconduct.
