To start with this article we will first know the meaning of an executor and its legal definition.An executor is a person who manages the distribution of a decendent’s assets in line with the instructions of the decendant’s testator as stated in the will.In section2(c) of Indian Succession Act,1925 an “executor” means the person to whom the execution of the last Will of a deceased person is,by the testator’s appointment,confided.We can also say that an executor according to law is a person who handles execution of a will of a person according to the will’s provisions.However in terms of civil law an executor is also named as “haeres testamentarius”.To speak in general terms for laymen it is simplu a legal duty to ensure that the desires of the testator are carried out properly.Thus, we can say that an ‘executor’ is the one who is appointed or is given a responsibility by the testator to execute his will.An executor is bound and is given a duty to distribute the property of the testator according to the provisions of the Will.
Now coming to the explanation of the word ‘Will’, a person’s (the testator’s) desires for how their property(estate) is to be dispersed after their death and who id to administer the property (executor) until its final distribution are expressed in a will or testament,which is a legal instrument.The term ‘will’ and ‘testament’ have historically been used interchangeably,despite the fact that it has occasionally been believed that a ‘will’ only related to real property and a “testament” only to personal property.In section2(h) of Indian Succession Act “Will” means the legal declaration of the intention of a testator with respect to his property which he desired to be carried into effect after his death.Therefore both personal property and real estate are legally covered by the term “will”,moreover a will may establish a testamentary.Thus,executor is a person who executes a will. To begin with further details we need to go through Indian Succession Act,1925.
WHO CAN BE AN EXECUTOR OF A WILL
There are few requirements to become an executor which are as follows:
- The executor chosen needs to be atleast 18 years old and major.
- 1.The executor ought to be mentally stable.
- 2.A replacement for the executor must be chosen if the original executor refuses to carry out their obligations.
- 3.A replacement for the executor must be chosen if the original executor refuses to carry out their obligations.
- In the event that there is a disagreement,it should be emphasised that the executor to be chosen must be a beneficiary under the third party’s will.
The executor must be made aware that even if something is done in good faith and there are errors,one is still responsible.But neither word nor certificates can create an intelligent executor.A person who is knowledgeable about the law is equipped to apply the law in an effective and efficient manner, and they never hesitate to speak out when necessary.Knowing the facts that are contained in the will is the first and most important step in handling a lawsuit.The wise course of action is to gain access to the will’s original document.The activities execution is thought to be a time-consuming procedure.Therefore, the person best suited for the position is the one with necessary expertise of time management. Another flaw is the testator’s claim that they are entitled to alter the executors at any moment throughout their lifetime.This presents a difficulty for the executor in convincing the testator that he is the ideal candidate for the position using the right interpretation strategies.Additionally,the executor would be wise to retain a record of the important documents or duplicates of them. The correct record of the debts and assets,investments,insurance policies,etc. are kept and how to get to them if the testator is not present.When the testator passes away,the executor’s role officially begins.The work include finding and submitting the will,completing the probate process,managing assets,paying off debts,filing tax returns,creating and maintaining any trusts, and more.
HOW A WILL CAN BE EXECUTED
There are various prerequisites at the moment the will is made.These involve two qualified witnesses,and beneficiaries obviously cannot serve as both witnesses and executors of the same will at the same time.A will deed and an executor are also necessary.The testator’s signature is a necessary component of execution, but if that is not possible,the thumbprint facilitates the process and also aids those who are illiterate or ignorant.The testator’s intent,which must be genuine and free from fraud,undue influence, or error,is another crucial consideration.If it is established that the will was carried out in violation of the law,it will be ruled invalid.Both the executor and the testator must be competent with regards to both circumstances.The execution of the will requires another setting of probate.The certified copy of the will that bears the seal of the appropriate court is known as probate.This finally demonstrates and authenticates the will.To request probate,the executor must submit a court application.The actual will must be included with the application by the executor.The executor must provide the legal heirs’ names and addresses in the application so that notification can be sent to them before the will is admitted to probate.
POWERS AND DUTIES OF EXECUTOR
Before coming to this topic we have to learn about some key words related to the execution of a will and they are as follows.
Probate- Under section 2(f) of Indian Succession Act, probate is defined as a copy of a will certified under the seal by a court of competent jurisdiction with a grant of administration to the estate of the testator.
Letter of administration-When property will pass according to the Intestacy Rules or when there are no executors who are still alive and who are willing and able to act after having been duly appointed under the deceased’s will,a letter of administration is the permission given by a Surrogate Court or probate registry to appoint the appropriate people to handle the estate.
Administrator-Under section 2(a) means a person appointed by competent authority to administer the estate of a deceased person in absence of an executor.
Powers of an Executor
1)Section 308 of Indian Succession act speaks about “General powers of administration” which states that an executor or administrator may incur expenses in ddition to and without limiting any other legal powers of expenditure that may be exercised by him.
on any actions that may be required for the effective upkeep or administration of any property belonging to any estate that he administers,and
With the approval of the High Court,on such improvements and other religious,charitable,and other purposes that may be reasonable and appropriate in the instance of such property.
2)Section 311 states that powers of numerous executors or administrators exercisable by one-When there are several executors or administrators,any one of them who has established the validity of the will or appointed administartion may,in absence any specific instructions to the contrary,use the powers of all of them.For example,i)any of the executors has the authority to discharge an obligation owed by the dead.ii)it is also possible for the executor to terminate a lease.iii)it is also possible for the executor to sell the deceased person’s possessions,both tangible and intangible.Section 312 of Indian Succession
3)Section 312 states that in the absence of a provision to the contrary in the will or the issuance of letters of administration,upon the death of one or more executors or administrators,all powers of the office pass to the survivor.
4)Section 313 of Indian Succession Act states that the administrator of unadministered effects has the same authority over these effects as the original executor or administrator.
5)Section 314 of Indian Succession Act speaks about another power of minority administrator where it says that a minority administrator has all of the same authority as a regular administrator.
6)Section 315 of Indian Succession Act says when a married woman receives a grant of probate or letters of administration,she has all the powers of an executor or administrator.
Duties of an executor
One must follow out the will’s instructions and abide by the law if you are the executor.Laws are written to support paying the executor,and as such,the probate court may also set the fee.The testator has a duty to make arrangements favouring the clear payments of the executor,and he also has a right to specify in the will itself how the payments are to be made in his absence if any unusual works,such as selling off personal property or managing litigation on behalf of the estate,are also involved.
1)Section 316 of Indian Succession Act,if the deceased left behind property adequate for the purpose, it is the executor’s responsibility to provide the money for the performance of the essential funeral rites in a way appropriate to his condition.
2)Section 317(1) states that an executor or administrator must present in that court an inventory containing a full and true estimate of all the property in possession, all the credits, and all the debts owed by any person to whom the executor or administrator is entitled, within six months of the grant of probate or letters of administration, or within such further time as the Court which granted the probate or letters may appoint.
Section 317(2) states that format in which an inventory or account under this section is to be displayed may be prescribed by the High Court.
Section 317(3) says that an executor or administrator who knowingly fails to comply with a court order to produce an inventory or account pursuant to this section is considered to have violated section 176 of the Indian Penal Code (45 of 1860.).
Section 317(4) further states that exhibition of an intentionally false inventory or account shall be construed as a violation of section 193 of that Code.
3)Section 318 of Indian Succession Act says that the executor or administrator must include in the inventory of the decedent’s effects all of his moveable and immoveable property located in India, and the value of such property located in each state must be separately stated in such inventory. The probate or letters of administration will be subject to a fee corresponding to the entire value of the property located in each state.
4)Section 319 implies that with regard to the deceased person’s property and debts, the executor or administrator must diligently collect both the deceased person’s property and any outstanding debts.
5)Section 320 further implies that expenses funeral costs up to a reasonable amount, in accordance with the degree and quality of the deceased, as well as charges for time spent on a deathbed, such as board and lodging for the month prior to his death and fees for medical attendance, must be paid before any obligations.
6)Section 321 adds up another duty where it is stated that the costs of obtaining probate or letters of administration, as well as any expenditures associated with any legal actions that may be required for administering the estate, are to be paid after death-bed charges and funeral expenses.
7) Wages for specific services to be paid after other debts, in the order of priority:-According to Section 322 wages owed for services performed to the deceased within three months prior to his passing by any labourer, artist, or domestic servant shall be paid after other debts, in the order of priority (if any).
8) Section 323 says other than as stated above, all debts must be paid evenly and proportionately. Except as provided above, no creditor shall be entitled to payment before another; nonetheless, the executor or administrator shall pay all debts known to him, including his own, equally and proportionately to the extent that the decedent’s assets would allow.
9)According to Section 324 (1) If the deceased person’s abode was outside of India, Indian law will govern how his moveable property is used to settle his debts.
Section 324(2) says a creditor who has had a portion of his debt satisfied under subsection (1) is not eligible to receive a share of the proceeds from the deceased person’s real estate unless he or she accounts for the other creditors in order to benefit from the payment.
Section 324(3) states where the dead was a Hindu, Muslim, Buddhist, Sikh, Jaina, or an exempted person, this provision shall not be applicable.
Further Section 325 states that the executor must settle debts prior to bequests.
Section 326 states that if the estate of the deceased is subject to any contingent obligations, an executor or administrator is not required to pay any legacy without a sufficient indemnity to settle the liabilities whenever they may become due.
12. Section 327 of Indian Succession act mentions about Abatement of general legacies. If the assets are not sufficient to pay all of the general legacies in full after paying debts, necessary expenses, and specific legacies, the latter shall abate or be diminished in equal proportions. In the absence of any specific instructions to the contrary in the will, the executor shall not have the authority to pay one legatee in preference to another or to withhold any funds on account of a legacy to himself or to another person.
13.Section 328 specifies another duty of the executor and says when assets are sufficient to fulfil debts, a specific inheritance is not waived. If there is a specific legacy and there are enough assets to cover all debts and necessary expenses, the stated item must be delivered to the legatee in full.
14.Section 329 states when assets are available to cover debts and essential expenses, this falls under a demonstrable legacy. When there is a demonstrable legacy and there are enough assets to cover debts and necessary expenses, the legatee has a preferential claim for payment of his legacy out of the fund from which the legacy is directed to be paid until such fund is exhausted, and if, after the fund is exhausted, part of the legacy still remains unpaid, he is entitled to rank for the remaining balance.
15.Section 330 mentions about Rateable abatement of special legacies. If the assets cannot pay the debts and the specific legacies, a rateable deduction will be made from the latter in proportion to the amounts of each.
16.And lastly Section 331 states that legacies must be treated as general for abatement purposes include legacies for life, money appropriated by the will to create an annuity, and the value of an annuity when no money has been appropriated to create it.
Thus,these are the duties and powers which an executor is granted by this act.
Alongwith these duties and powers Section 303 and 304 explains about liability of an executor of his personal wrong which we will discuss now.Section 303 says when there is no legitimate executor or administrator, a person who meddles with the estate of the deceased or performs any other act that pertains to the office of executor becomes himself the executor of his own wrong.
However there are few exceptions to this section which are as follows:-
(1) An executor is not in the wrong for messing with the estate’s assets in order to preserve them, pay for his burial, or meet his family’s or the property’s immediate needs.
(2) An executor is not in the wrong if they deal with goods belonging to the deceased that they got from someone else in the normal course of business.
An illustration will help us to clear out this point
A Utilizes, gives away, or sells some of the deceased person’s possessions, or uses them to fulfil personal needs or receives repayments of the debts of the deceased to satisfy his needs.A is an
executor of his own wrong.
Further in section 304 of Indian Succession act, it is stated that when someone acts in such a way as to become the executor of their own wrong, they are accountable to the proper executor or administrator as well as any creditors or legatees of the deceased to the extent of any assets that may have come into their possession after subtracting payments made to the proper executor or administrator as well as payments made in the proper course of administration.
a)In the case of Kavita Kanwar v. Mrs.Pamela Mehta the testatrix, the late Smt. Amarjeet Mamik, had a son and two daughters, according to the short facts of the Kavita case. Despite the fact that one daughter, Kavita Kanwar, had not lived with the testatrix for more than 20 years, she served as the will’s executor and a key beneficiary. The other daughter, Pamela Mehta, who was a widow with a child and resided in the same building, looked after the testator’s cancer patient. Other than a vague request that Ms. Kanwar provide her with a place to live in the gifted property, she did not get the considerable fortune. Prithviraj Mamik, the testatrix’s son, too claimed to have good ties with her but only received a few compliments.
b)In Chinnappa Pillay And Anr. vs Kailasam Pillay,two purported testamentary documents of one Vankatachalam Pillai, deceased, who passed away on August 26, 1914, are in dispute in this appeal. They are designated Exhibits A-1 and A, and are dated, respectively, January 24 and January 2, 1914. The latter is proposed by his concubine, Velliammai, who is a minor Kailasam Pillai, son of Venkatachalam. Respondents Nos. 3 and 4, who are two of the three sons of Thillainayagam Pillai, the testator’s adopted brother, presented this Kaillasam Pillai’s application to the District Court of South Arcot for leave to prove A and for the issuance to him of Letters of Administration with this Will annexed A-1. These papers, A and A-3, were both allowed to probate after the learned District Judge determined that they were both genuine documents. Additionally, he discovered that the later Will
did not revoke the older one. Together with respondents Nos. 3 and 4, the decedent’s widow (respondent No. 2) received letters of administration.
2. There are three issues with this appeal.
(1)The validity of the Wills, to start.
(2) The latter’s revocation of the former.
intention to revoke implied.
(3)intention to revoke implied.
(c)The Honorable Apex Court ruled in PPK Gopalan Nambiar vs. Balakrishnan Nambiar and Others that there must be genuine, pertinent, and reliable suspicious elements and not only the imagination of the questioning mind.
(d)The Honourable Apex Court ruled in Savithri and others vs. Karthyayani Amma and others that the mere fact that the natural heirs were either excluded or received a smaller share of the estate cannot be viewed in isolation as raising suspicions.
(e)The Hon’ble Court stated in R. Vasanthi vs. Janaki Devi and others that a will’s registration may, depending on the situation, demonstrate its veracity.
(f)The Honourable Apex Court ruled in Rabindra Nath Mukherjee and another vs. Panchanan Banerjee (dead) by L.Rs and others that excluding natural heirs should not raise
The existence of a will, or “wasiyat” in Muslim law, has a significant impact on the lives of those who are directly or indirectly related to the person who created it. Wills hold a variety of activities with suitable execution frameworks. Without a will, issues occur, and the state steps in to handle the property distribution along with several legal procedures and formalities. Unfortunately, a bigger segment of society does not make use of this option and passes away without leaving a will. Therefore, provisions should be established to disseminate information about the context of the will to every nook and cranny of society, especially to rural areas where there are seniors who, while somewhat uneducated, at least have access to legal advice.The existence of will in turn gets attached with the appointment of executor without which will cannot be executed.The Indian Succession Act has given us a clear view of executor of a will which is discussed in this article. Their are huge responsibilities and powers attached with the executors for distribution of a property.Terms like probate, letter of administration described in the act also helps laymen to deal with the distribution of property.Thus will and executor are the two most important things attached with distribution of property.
- 1.Indian Succession Act,1925
- 3.Academike explainer
I have always been against Glorifying Over Work and therefore, in the year 2021, I have decided to launch this campaign “Balancing Life”and talk about this wrong practice, that we have been following since last few years. I will be talking to and interviewing around 1 lakh people in the coming 2021 and publish their interview regarding their opinion on glamourising Over Work.
IF YOU ARE INTERESTED IN PARTICIPATING IN THE SAME, DO LET ME KNOW.
Do follow me on Facebook, Twitter Youtube and Instagram.
The copyright of this Article belongs exclusively to Ms. Aishwarya Sandeep. Reproduction of the same, without permission will amount to Copyright Infringement. Appropriate Legal Action under the Indian Laws will be taken.
If you would also like to contribute to my website, then do share your articles or poems at firstname.lastname@example.org
In the year 2021, we wrote about 1000 Inspirational Women In India, in the year 2022, we would be featuring 5000 Start Up Stories
Leave a Reply