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Executor

The person named in a will to carry it out — obtain probate where needed, collect the assets, pay debts, taxes and expenses, and distribute the estate as the will directs.

In plain language

A will says what should happen after death. Someone has to make it happen.

The Indian Succession Act, Section 2(c), defines an executor as the person to whom the execution of the last will of the deceased is, by the testator's appointment, confided. The main role of an executor is to collate all assets of the deceased, pay off liabilities and distribute the legacy as the will wishes.

Appointing an executor is one of the workbook's reasons to write a will at all: a testator who names an executor has chosen a trusted person, whereas in intestacy the administrators have to provide an administration bond and securities for due administration of the estate.

How it works

Functions, in the workbook's order:

  1. Probate. Offer the will for probate where the situation requires; the court issues the probate to the executor, authorising execution of the will. Section 222 — probate is granted only to an executor appointed by the will.
  2. Study the will, including any trust deed created under it.
  3. Pay funeral expenses and obtain the death certificate.
  4. Locate the assets — bank, investments, property — with original papers, and determine their present value, taking legal help if needed.
  5. Pay all debts, liabilities and taxes. Lenders have the first right; assets may be liquidated to pay them.
  6. Distribute the estate as the will provides.
  7. Where the will requires, manage a minor child's assets until majority. An executor who mismanages assets can be held liable.

Who can be executor. Anyone capable of making a will — family, friends, relatives, even a company. A beneficiary can also be executor. There is no limit on the number of executors.

  • A minor can be appointed, but probate cannot be granted until majority; meanwhile the legal guardian can obtain letters of administration.
  • A person of unsound mind cannot be granted probate, so cannot serve.
  • An executor may refuse before starting to deal with the estate; once accepted, the executor is legally bound and can be relieved only by a court order.
  • Section 141 — an executor who is also a legatee cannot claim the legacy without showing an intention to act as executor.

When there is no executor, the court appoints an administrator and issues letters of administration.

A worked example

Illustrative scenario.

Mr Shah's will names his brother Nitin as executor and his wife and two children as legatees. His estate: a flat in Mumbai worth Rs 2.4 crore, mutual funds of Rs 60 lakh, a bank balance of Rs 8 lakh, and a car loan outstanding of Rs 6 lakh.

What Nitin does:

StepAction
1Pays funeral expenses; obtains the death certificate
2Because the immovable property is in Mumbai, probate is mandatory — he files the application with the will, verified by at least one attesting witness; the court notifies legal heirs and advertises for objections
3Locates the flat papers, fund statements and bank records; values the estate at about Rs 3.08 crore
4Pays the Rs 6 lakh car loan and any tax dues first — lenders rank ahead of legatees
5Distributes the flat, funds and cash as the will specifies

Three variations. If the will had named Mr Shah's 16-year-old son as executor, probate could not issue to him until he turned 18; his guardian would seek letters of administration meanwhile. If Nitin had declined before touching the estate, he would be free to; after starting, only a court could relieve him. And if Nitin is also left a legacy, Section 141 requires him to show intention to act as executor before claiming it.

Why NISM asks about it

Chapter 15 (Tools for Estate Planning), section 15.2.8 — Role of the executor — with probate at 15.3 and the definition of executor and legatee at 15.2.1. Expect questions on who may be appointed (minor, company, beneficiary), the sequence of duties, Section 222 on probate, and what happens when no executor is appointed.

Common exam traps

  • Probate is granted only to an executor appointed by the will (Section 222).
  • A company and a beneficiary can both be executors; there is no limit on numbers.
  • A minor can be appointed but cannot get probate until majority — the guardian seeks letters of administration meanwhile.
  • Refusal is allowed only before starting; afterwards, only a court can relieve the executor.
  • Debts and taxes before distribution — lenders have the first right.
  • Executor ≠ legatee ≠ administrator. The executor is named in the will; the legatee receives under it; an administrator is appointed by the court when there is no executor.

Check yourself

  1. 1.An executor accepts the appointment and begins dealing with the estate, then wishes to withdraw. Can he?

    1. a)Yes, at any time by writing to the beneficiaries
    2. b)No — once the responsibility is accepted he is legally bound, and can be relieved only by a court order
    3. c)Yes, provided another executor is appointed by the family
    4. d)No, in no circumstances whatsoever
    Show the answer

    Answer: (b) No — once the responsibility is accepted he is legally bound, and can be relieved only by a court order

    The workbook states that an executor HAS THE RIGHT OF REFUSAL BEFORE HE STARTS DEALING WITH ESTATE. BUT ONCE THE RESPONSIBILITY IS ACCEPTED BY THE EXECUTOR, HE/SHE IS LEGALLY BOUND TO COMPLETE THE TASK. THE EXECUTOR CAN BE RELIEVED ONLY BY A COURT ORDER if he is not willing to act. Acceptance is the point of no return, which is why a testator should ask the intended executor before naming him.

  2. 2.Harish Kulkarni signed his Will and had it attested. He also signed and had attested a duplicate, which he gave to his executor. He later tears up the copy in his own custody. What is the effect as per the workbook?

    1. a)Only Harish's copy is revoked; the duplicate held by the executor remains his valid Will
    2. b)The duplicate becomes a concurrent Will and must be admitted to probate on its own
    3. c)Nothing is revoked, because mere loss or destruction of a Will never amounts to revocation
    4. d)Both the Will and the duplicate are treated as revoked
    Show the answer

    Answer: (d) Both the Will and the duplicate are treated as revoked

    The workbook on the duplicate Will: “A duplicate will is a copy of the Will kept with the testator. But the will has to be duly signed and attested. The duplicate will generally lies with the executor or trustee. When the testator mutilates or destroys the part in his custody then both wills are considered to be revoked.”

    Harish destroyed the part in his custody, so both documents are revoked.

    Option A is wrong. The workbook says “both wills are considered to be revoked”. The executor's copy does not survive.

    Option B is wrong. A concurrent Will is a different type: “the testator may write two wills – one relating to his property in one country and other relating to his property in other country. Both these wills are treated as independent.” A duplicate is a copy of the same Will, not a second independent Will.

    Option C is wrong. It treats destruction as if it were loss. “The mere loss of the Will does not lead to revocation but where the Will is destroyed by the testator or with his privity or approbation, the Will is deemed to have been revoked” (p351). Tearing is one of the listed modes: “By burning, tearing or otherwise destroying the Will by the testator ... with the intention of revoking the Will.”

    Related type on the same page: a joint Will “is recognized as two wills and is intended to take effect after the death of both the testators”. It is admitted to probate as individual wills.

Where this is taught

Free preparation for NISM Series X-B

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