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:
- 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.
- Study the will, including any trust deed created under it.
- Pay funeral expenses and obtain the death certificate.
- Locate the assets — bank, investments, property — with original papers, and determine their present value, taking legal help if needed.
- Pay all debts, liabilities and taxes. Lenders have the first right; assets may be liquidated to pay them.
- Distribute the estate as the will provides.
- 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:
| Step | Action |
|---|---|
| 1 | Pays funeral expenses; obtains the death certificate |
| 2 | Because 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 |
| 3 | Locates the flat papers, fund statements and bank records; values the estate at about Rs 3.08 crore |
| 4 | Pays the Rs 6 lakh car loan and any tax dues first — lenders rank ahead of legatees |
| 5 | Distributes 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.An executor accepts the appointment and begins dealing with the estate, then wishes to withdraw. Can he?
- a)Yes, at any time by writing to the beneficiaries
- b)No — once the responsibility is accepted he is legally bound, and can be relieved only by a court order
- c)Yes, provided another executor is appointed by the family
- 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.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?
- a)Only Harish's copy is revoked; the duplicate held by the executor remains his valid Will
- b)The duplicate becomes a concurrent Will and must be admitted to probate on its own
- c)Nothing is revoked, because mere loss or destruction of a Will never amounts to revocation
- 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-BRelated terms
- CodicilA supplementary document that explains, alters or adds to a Will and is read as part of it — executed and attested exactly like the Will itself.
- LegateeThe person named in a Will to receive a portion of the deceased person's estate, as distinct from the executor, who is named to administer it.
- Letters of administrationA court grant authorising an administrator to administer a deceased person's estate under a will when there is no executor able and willing to act — the alternative to probate.
- ProbateA copy of a will, certified under the seal of a court of competent jurisdiction, certifying that the will was proved on a certain date — the legal confirmation attached to the will it certifies.
- Succession certificateA certificate issued by a District Court under the Indian Succession Act, 1925 authorising the legal heirs of someone who died without a Will to collect the deceased's debts and securities.
- TestatorThe person who makes a Will — Section 2(h) of the Indian Succession Act, 1925 defines a Will as the legal declaration of the testator's intention about his property, to take effect after his death.
- AdministratorThe person a court appoints to administer a deceased person's estate under letters of administration — used when a will names no executor, or the named executor cannot or will not act, or dies before finishing the job.
- Concurrent WillTwo separate wills written by the same testator — typically one for property in each of two countries — treated as independent, though both must go to probate together if they are related.
- WillA written legal declaration of how a person wants their assets distributed after death. Registration is not compulsory but preferable; without a Will, assets pass under personal laws.
- Official TrusteeThe state-appointed default trustee who receives and holds a Married Women's Property Act policy's proceeds whenever the policyholder has not named a special trustee of his own.
- Joint WillA Will made by two or more persons, valid in Indian law, recognised as two Wills and intended to take effect after the death of both testators, with each testator disposing of property as an individual Will.
- Living WillAn advance directive written primarily for physicians, stating a person's wishes for end-of-life care in situations where they are unable to communicate their decisions.
- Testamentary capacityThe soundness of mind a testator must have to make a valid Will - sufficient capacity to understand his property, his relation to the possible objects of his bequest, and the bearing of the Will provisions.
- Testamentary guardianA guardian appointed under the provisions of a Will, most often for minor children, who manages the child affairs within the limits the Will sets.