This article has been written by Ms. Gargi Lad, a 3rd year student of NMIMS School of Law, Bangalore.

 

INTRODUCTION

A will is essentially a legal document that only takes effect when the testator, or the person who wrote the will, passes away. The Testator may amend his Will at any moment while he is still living. During the testator’s lifetime, the beneficiaries of the will are not legally entitled to the property. A will’s executor only comes into play following the death of the will’s creator. This article will go over the Executor’s obligations, the significant duties and tasks that come within their purview while managing the Testator’s estate, and the significance of selecting the most qualified applicant for the position. Selecting an executor or executors is one of the most important choices a person must make when establishing a will.  Upon death, an executor designated in a will essentially assumes the role of the testator.  Similarly, an administrator assumes the role of the dead even if he or she is selected by the court.

An executor is often designated in the Will.  An executor may also be appointed by implication from the language of the Will; for instance, if the testator does not name an executor explicitly but, based on how the Will is interpreted, it seems that a certain individual has been assigned to carry out the necessary duties of an executor.  

The executor in this situation is referred to as “executor according to the tenure” of the Will. It is also possible for someone to act as their own executor by “intermeddling” or handling the estate’s possessions. A person like this is referred to be an “executor de son tort.” A person can “renounce Probate” by submitting the required paperwork to the Supreme Court if they are named an executor under a will but do not want to assume the function.

All persons in India are subject to the Indian Succession Act, 1925 (ISA) regarding wills, with the exception of Muslims, who are subject to Mohammedan law, also known as Hanafi law, regarding inheritance affairs.

 

HISTORY OF WILLS

The earliest known applications of the will may be found in classical Greece and Rome. A person had to be of sound body and mind in order to create a will, and witnesses and signatures were needed. This was roughly similar to the procedure that exists now. These days, this procedure can be known as a notarial will. After studying ancient Greece and Rome, historians frequently determine when Wills were first used in early England. Because of the evolution of family structures, customs, and legal systems, the process of making a Last Will and Testament has undergone substantial changes throughout time. The goal of a will has remained mostly unchanged—to lessen the financial burden of death on remaining family members—but as society has evolved, so too have these legal papers to become what they are today.

It is clear that Wills has withstood the test of time and still does. This is due to the fact that they provide direction and clarity after death. They also offer consumers the comfort of knowing that they have contributed to safeguarding the future of their family. Early civilizations made arrangements for the future of their members in case of death, whether via the drafting of a Last Will and Testament or the establishment of succession laws. 

WHY AND HOW IMPORTANT IT IS TO WRITE A WILL: 

• A Will assigns an executor to handle your last requests; 
• They can name guardians for kids and pets; 
• They let you name people to handle financial and medical choices; 
• Wills contain the intentions for last preparations.
• The allocation of assets and property is contained in these documents.

The Indian Succession Act

The role of executors and administrators is crucial in the succession process, particularly when it comes to will-related issues. The Indian Succession Act’s Chapter 6 covers the Administrators’ Powers, whereas Chapter 7 covers their Duties. Regarding claims against living decedents and obligations owed upon death. An executor or administrator may pursue legal action for any claims that outlive the decedent and may employ the same legal remedies to collect debts that the decedent did when they were alive. Executors and administrators are nevertheless subject to the demands and rights of action made by or against the deceased.

All demands, regardless of nature, and all rights to pursue or defend any action or special proceeding that was pending in favour of or against a person at the time of his death, remain to and against his executors or administrators; with the exception of cases where the relief sought could be granted after the party’s death and cases involving defamation, assault, or other personal injuries that did not result in the party’s death as defined by the Indian Penal Code (45 of 1860).

WHO IS AN EXECUTOR?

An executor is a person designated by the testator who is charged with carrying out the testator’s wishes upon death. A Will may name multiple executors, and the testator may designate some to serve as co-executors or on their own. In essence, the Executor acts as the Testator’s trustee or legal representative.

WHAT ARE THE DUTIES OF AN EXECUTOR?

After the Testator’s death, the Executor’s role becomes vital. The Executor bears the responsibility and trust of seeing that all persons named in the Will carry out the desires and directives of the Testator who has passed away. The primary duties of an executor are as follows:

LEGAL DUTIES:

• Getting custody of the original Will and any other relevant official papers that belong to the testator, including the certificate of death, identity documents, and asset and property ownership records.

• Completing all the required paperwork to transfer the testator’s assets, including mutual funds, shares, fixed deposits, and bank savings accounts. In accordance with the terms of the Will, the Executor may also be obliged to sell any of the Testator’s possessions and contribute the money to the estate for distribution.
• Compiling a list of all the testator’s assets and obligations, as well as creating an inventory of the entire estate.
• Acquiring any obligations owed to the testator and paying them off methodically and in order of importance. All transactions carried out on the Testator’s behalf must be documented by the Executor. If necessary, the Executor may file a lawsuit on the Testator’s behalf.
• Using the testator’s estate to cover the cost of the funeral. The Executor shall, with the heirs’ assistance, if necessary, carry out any instructions specified by the Testator in the Will with regard to the performance of any particular funeral plans or rituals.
• If necessary, have the will recorded with the appropriate authorities. For example, a registered Will might be favoured in certain situations of property mutation. Although it is not required, an Executor may register a will upon the testator’s death under Section 40 (1) of the Indian Registration Act, 1908.
• Lastly, administer the settlement and distribution of assets to the appropriate Beneficiaries in accordance with the instructions in the Will, interpreting it as the Testator intended.

FIDUCIARY DUTIES:

Executors owe a fiduciary duty to Beneficiaries, which means that they are obliged to act in the best interests of the estate and its Beneficiaries. These duties include:

• Prudent Financial Management: They have to take good care of estate accounts and assets, paying bills on time, making wise investments, and maintaining accurate records of all financial activities.
• Impartiality: In order to follow the testator’s intentions and act in their best interests, executors should handle all beneficiaries and legal heirs equally and impartially. They should also avoid conflicts of interest or favouritism.
• Accountability: To guarantee openness in the administration of the estate, executors must keep up-to-date accounting records and reports.

 

ETHICAL AND MORAL RESPONSIBILITIES:

In addition to their monetary and legal obligations, executors also have moral and ethical duties, like:

• Respecting the Decedent’s Wishes: Even if they personally disagree with the deceased’s wishes, the executors are required to carry out those wishes as specified in the will.
• Preserving Confidentiality: They ought to keep the decedent’s financial matters private.
• Communication and Transparency: Executors are encouraged to maintain open and transparent communication with Beneficiaries, keeping them informed about the progress of estate administration.

 

THE EXECUTOR’S ROLE IN BRINGING THE WILL TO LIFE

After the Testator passes away, the Executor’s crucial duty becomes apparent. Legally speaking, the Executor is in charge of making sure that every party to the Will complies with the testator’s instructions and intentions. The aforementioned list makes clear how important the Executor’s duty is. An executor brings together various elements of a will to ensure everything is carried out effectively, much like a director brings together various musicians, instruments, and sections to play a symphony.

When it comes to overseeing the entire process, working with Beneficiaries , managing assets, and making sure that every aspect of the Will is carried out in line with the Testator’s intentions, the Executor’s role is comparable to that of a conductor. In order to ensure that the final performance, or distribution of assets, is carried out in accordance with the Testator’s wishes, executors play a crucial role in bringing the various components together. In spite of the significance of this role, no law exists in India requiring the Testator to select an Executor at the time of writing their Will. On the other side, there are clear advantages to selecting a reliable person, and this is a custom.

CAN A BENEFICIARY BE AN EXECUTOR?

An Executor may be a Beneficiary, particularly in the case of nuclear families. However, in cases with large families with complicated preferences, having an impartial third party that is disinterested in the property can help to ensure a fair operation and prevent any potential family disputes. You can spare your loved ones the trouble of managing paperwork by designating an Executor in your will. In the absence of an executor, the administrator may be chosen by the court, which might be confusing and complicated. Therefore, selecting an Executor you can trust—someone who will behave honourably and carry out their responsibilities—is essential. The Beneficiaries are entitled to legal action against the Executor in the event of any wrongdoing. The distribution of your inheritance will go more smoothly and securely if you have a trustworthy Executor.

Hence, you should make sure the appointed Executor is:

According to the law, an executor may be:

• Any person who is competent and above the age of eighteen
• An Indian-incorporated business; 
• A Will beneficiary
• Able to comprehend the fundamental legal and administrative procedures.
• Kind and amiable towards others. They must to be able to effectively interact with the bereaved family and keep them informed of all developments regarding the transfer of assets in accordance with the Will.
• Conveniently situated, ideally within the same city, to ensure their availability at the site of the Will’s execution.
• At ease accepting this task. (The best course of action in this situation could be to discuss it with them ahead and get their permission.)
• Younger than you, so that they can inherit this duty from you if they survive.

SELECTING AN EXECUTOR

Like most individuals, you could find it more comfortable to choose a member of your immediate family as your executor. You can always choose a professional or a lawyer if you want. Just be cautious and careful in your choice of this guy. It is noteworthy to mention that, should the primary Executor become unavailable, you also have the choice to choose a backup Executor.

COMMISSION AND FEES

An executor or administrator is required under the Administrator-General’s Act, 1913, to guarantee that they do not accept or hold onto any commission or agency fees at a rate greater than the rate established with reference to the Administrator-General.

 

WHAT HAPPENS IF YOU DON’T APPOINT AN EXECUTOR

The court will designate an executor for you if you don’t end up designating one for the administration of the estate in your will. An administrator is a person who is often selected from your immediate family or legal heirs. Note that this might not be the best situation. You are the one who knows your family’s dynamics the best, therefore making this choice on your own is always preferable.

 

ADVANTAGES OF AN EXECUTOR

• Beneficiaries must be guaranteed to handle the property with care.
• The family can be spared of the administrative burden of carrying out the will by designating a third party as executor.
• Numerous court battles resulting from family disagreements may be avoided by designating an executor who will be impartial and fair in his dealings. designating the executor in good time will save time and money and benefit the beneficiaries.

 

POWERS OF AN EXECUTOR

In accordance with Section 305 of the Act, an executor is authorised to file a lawsuit on behalf of the testator who has passed away in order to collect any claims that the testator may have had while he was still living and to reclaim any outstanding debts. An executor may be required to pay costs for the administration and appropriate care of the dead testator’s assets until their ultimate disposition in accordance with Section 308 of the Act. Along with spending money on charitable, religious, and other causes, an executor may also make reasonable modifications to the property with approval from the High Court.

Under Section 307 of the Act, an executor has the authority to dispose of the dead testator’s property in any manner that the executor thinks suitable or necessary in accordance with the terms of Section 211 of the Act with the approval of the High Court. He has the authority to utilise capital for the benefit of minor beneficiaries and apply estate income for their upkeep: this is especially helpful in cases where the testator left behind small children for whom the executor is responsible for providing care and covering costs like tuition.

He also holds the authority to invest the estate in order to produce money for the estate’s benefits; nevertheless, this authority must be used carefully so as to uphold the executor’s obligations to the beneficiaries, to designate a curator, agent, or nominee for trust assets. This gives the executor the authority to choose experts to oversee the estate, including stockbrokers or investment managers.

 

HOW IS A WILL EXECUTED BY AN EXECUTOR?

In order to request probate, the executor must submit an application to the court. The actual will must be attached by the executor to the application. The names and addresses of the deceased’s lawful heirs must be listed in the application by the executor in order to notify them prior to the will being probated.

 

WILLS FOR MUSLIMS

Muslims are only permitted to leave a third of their total property as bequests, making their wills extremely limited. Muslims have distinct notions when it comes to property, unlike Hindus they do not believe in the concept of ancestral property and joint family so Muslims have only their self-acquired property as the main source to bequeath or to make a gift. Muslims also don’t believe in the concept of adoption; hence only natural born children are the legal heirs to a Muslim wishing to bequeath property via testament.

EXECUTOR OF A MUSLIM WILL:

An executor was only an administrator to carry out the testator’s intentions under the rigorous laws of Muhammadabad. He was a trustee appointed by the testator to look after and safeguard his assets and children following his death. The property of the deceased did not vest in him, nor was he the rightful owner of it. Now, an executor of a Muslim’s will is his legal agent for all purposes and inherits all of the deceased’s property under the terms of Section 211 of the Indian Succession Act, 1925; in this way, he can dispose of the property at the designated time.

REFERENCES

1. Family Law Lectures, by Dr. Poonam Pradhan Saxena, ISBN-10 9391211666, 5th edition
2. The Indian Succession Act, 1925
3. The Indian Succession Act, 1925, Sanjiva Row, ISBN-10 8187162325, 7th edition
4. The Indian Succession Act, Paruck , S S Subramani & K Kannan,  ISBN-10 9386515865, 9th edition
5. Law of Wills, T.P.Gopalakrishnan, ISBN- 9789391211677, 11th edition