ROLE OF AN EXECUTOR
• A Will contains important details regarding a person’s possessions and property that need to be taken care of even after a person’s demise and the distribution of these assets among the re-spective legal heirs. If a person does not write or prepare a Will, the law directs the way their estate is to be passed on and to whom, which may or may not be in line with their wishes. A will includes personal belongings and assets which will go to family members or the beneficiar-ies that are personally assigned.
• According to the The Hindu Succession Act 1956, if a Hindu male dies without making a Will, all his assets are to be distributed to the heirs specified in Class I of the Schedule, that is Moth-er, Wife, Sons and/or Daughters and if no heirs of Class I are present, then the estate goes to heirs of Class 2, equally to the Father, Brothers and Sisters. Thirdly, if there is no heir of any of the two classes, then upon the agnates of the deceased and lastly, if there is no agnate, then upon the cognates of the deceased.
• In case a Hindu female dies without making a Will, the property will be distributed to firstly the sons and daughters (including the children of any pre-deceased son or daughter) and the husband, secondly upon the heirs of the husband, thirdly upon the mother and father, fourthly upon the heirs of the father and lastly, upon the heirs of the mother.
• According to Section 2 (c) of The Indian Succession Act 1925, an Executor means a person to whom the execution of the last Will of a deceased person is confided by the testator’s ap-pointment. An Executor is the person you trust to have the authority to ensure that your wishes are carried out and to ensure that all of your affairs are in order.
• A testator is known as someone who has made a Will or given a legacy. The noun testator comes from the Latin verb “testari”, meaning “make a Will, be witness or de-clare”.
• According to Section 2 (h) The Indian Succession Act 1925, a Will is considered to be a legal declaration of the intention of a testator with respect to their property which is desired to be carried into effect after their death.
APPOINTMENT OF EXECUTOR
Any person aged 18 or above can be an Executor of a person’s Will, any person other than a mi-nor. There is no rule against people named in your Will as beneficiaries being your Executors. It is not necessary to appoint a lawyer. Many people choose their spouse or business partner or their children to be their Executor. But that does not mean they have to write them out of the will. The Indian Succession Act 1925, does not make it compulsory to appoint an Executor of a Will. However, if you fail to appoint an Executor, the court intervenes and appoints someone, which may not be as per one’s wishes.
POWER OF EXECUTOR
• According to Section 307 in The Indian Succession Act 1925, an Executor has power to dis-pose of the property of the deceased, vested in him under Section 211, either wholly or in part, in such manner as the person may think fit.
1. The deceased has made a specific bequest of part of his property. The Executor, not hav-ing assented to the bequest, sells the subject of it. The sale is valid.
2. The Executor in the exercise of his discretion mortgages a part of the immovable estate of the deceased. The mortgage is valid.
• If the deceased was a Hindu, Muslim, Buddhist, Sikh or Jain or an exempted person, the gen-eral power of an executor to dispose of immovable property so vested in him is subject to any restriction which may be imposed in this behalf by the Will appointing him, unless probate has been granted to him and the Court which granted the probate permits him by an order in writ-ing to dispose of any immovable property specified in the order.
RESPONSIBILITIES OF EXECUTOR
In India, an Executor has various responsibilities, and these include, but are not limited to :
a) Funeral arrangements and paying for the funeral from the assets
b) Registering time and place of death and informing all concerned
c) Filing probate, proving his identity and establishing his authenticity
d) Paying debts
e) Taking care of the property until it is sold or passed on to the beneficiaries
f) Dealing with any related legal procedures
g) Locating beneficiaries
h) Distributing the assets of the estate to the beneficiaries
i) Record of all the transactions
j) Submitting relevant receipts to the court
k) Taking legal and financial responsibility for the administration of the estate
CAN A LAW FIRM BE AN EXECUTOR?
Individual Executorship vs. Corporate Executorship :
1. Knowledge and experience is limited when it comes to Individual Executorship. Whereas, Corporate Executorship is highly professional.
2. The chances of personal biases are of a high probability when it comes to Individual Executor-ship. But the probability is low or nil under Corporate Executorship as they are neutral parties.
3. Individual Executorship is suitable for simple estates, whereas Corporate Executorship is suit-able for larger and complex estates.
4. Appointing an Individual Executor is cost effective. However, in Corporate Executorship, professionals charge a fee for their services which may not be cost effective. But the ad-vantage is that the required fee needs to be paid only at the time of execution.
If a person dies without a proper Will or does not name someone to be the Executor of the estate, the court will determine who should be your personal representative. By naming an Executor, you can control who will be responsible for managing your properties and carrying out your wishes after your demise. However, if the will does not mention an Executor, the Court will ap-point someone to be the Executor. But it has not been specified anywhere whether or not a firm can act as an Executor. Therefore, it’s open to interpretation. The traditional practice of writing a Will has always been to consult a lawyer, draft a Will and leave it with some trusted family ac-quaintance. The trusted family friend would be entrusted with the task of executing the Will. But there have been instances where the family acquaintance is accused of siding with a particular section of the beneficiaries. It is here that the concept of professional companies came in.