Introduction
An Executor of a Will is a person who is appointed by the testator (the person who makes a Will) to carry out and give effect to the provisions of the Will after the testator's death. The concept of executor is governed by the Indian Succession Act, 1925, which is the main legislation dealing with testamentary succession in India. The executor is the legal representative of the deceased and plays a crucial role in ensuring that the last wishes of the testator are faithfully carried out.
Meaning and Definition
Under Section 2(c) of the Indian Succession Act, 1925, an executor is defined as:
"A person to whom the execution of the last Will of a deceased person is, by the testator's appointment, confided."
In simple terms, the executor is the person trusted by the testator to manage and distribute his estate after death according to the instructions in the Will.
Appointment of Executor
1. Express Appointment The most common method is when the testator expressly names a person as executor in the Will. Any person can be appointed as executor — a family member, friend, lawyer, or even a bank or financial institution.
2. Implied Appointment An executor can also be appointed by implication when the Will clearly shows an intention to appoint a person to execute it, even without using the word "executor."
3. Appointment with Limitations The testator can appoint an executor for a limited purpose or for a limited period. For example, an executor may be appointed only to manage certain specific property.
4. Multiple Executors The testator can appoint more than one executor. When multiple executors are appointed, they must generally act jointly unless the Will provides otherwise.
Who Can Be Appointed as Executor?
The following persons can be appointed as executors:
- Any adult person of sound mind
- A beneficiary under the Will (a person who receives property under the Will can also be the executor)
- A body corporate such as a bank or trust company
- A lawyer or chartered accountant
The following cannot be appointed as executors:
- A minor (person below 18 years)
- A person of unsound mind
- An insolvent person
Duties of an Executor
1. Obtaining Probate The first and most important duty of an executor is to obtain Probate from a competent court. Under Section 213 of the Indian Succession Act, no right as executor can be established in any court unless probate has been granted. Probate is a certified copy of the Will with a court seal confirming its validity and the authority of the executor.
2. Taking Possession of Assets The executor must take possession and control of all assets of the deceased including:
- Movable property (cash, jewelry, vehicles)
- Immovable property (land, buildings)
- Bank accounts and investments
- Business interests and intellectual property
3. Paying Debts and Liabilities Before distributing the estate to beneficiaries, the executor must pay all lawful debts and liabilities of the deceased in the following order of priority:
- Funeral expenses
- Costs of obtaining probate
- Taxes and government dues
- Other debts
4. Distributing the Estate After paying all debts, the executor must distribute the remaining estate to the beneficiaries exactly as directed by the Will.
5. Maintaining Accounts The executor must maintain proper accounts of all receipts and payments made in connection with the estate and must be ready to render accounts to the beneficiaries if required.
6. Filing Tax Returns The executor must file all pending income tax returns of the deceased and pay any taxes due from the estate.
Powers of an Executor
1. Power to Sue and Be Sued The executor can file lawsuits and can be sued in his capacity as executor for matters relating to the estate.
2. Power to Sell Property The executor can sell estate property when necessary to pay debts or to distribute the estate among multiple beneficiaries.
3. Power to Compromise The executor can compromise disputes relating to the estate and such compromise is binding on the beneficiaries.
4. Power to Give Receipts The executor can give valid receipts for payments made to the estate and such receipts discharge the payer from further liability.
Renunciation by Executor
Under Section 303 of the Indian Succession Act, an executor can renounce his right to act as executor before obtaining probate. Once he renounces, he cannot later claim the right to act as executor. However, after obtaining probate and starting to act as executor, he cannot renounce without the permission of the court.
Liability of Executor
The executor is personally liable if he:
- Misappropriates or wastes estate assets (devastavit)
- Pays debts in wrong order of priority
- Distributes estate before paying all debts
- Fails to obtain probate when required
- Acts negligently in managing the estate
Important Case Laws
1. Khunni Lal v. Gobind Krishna Narain (1911) The Privy Council held that the executor derives authority from the Will itself and not from the grant of probate. Probate merely authenticates the authority already given by the testator.
2. In re Goods of Mehta (1948) The court held that an executor who misappropriates estate assets is personally liable to the beneficiaries and can be removed by the court.
Difference Between Executor and Administrator
| Executor | Administrator |
|---|---|
| Appointed by testator in Will | Appointed by court |
| Gets Probate | Gets Letters of Administration |
| Derives authority from Will | Derives authority from court |
| Acts when Will exists | Acts when no Will or no executor |
Conclusion
The executor of a Will is one of the most important figures in the law of testamentary succession. He acts as the legal representative of the deceased and bears the responsibility of ensuring that the testator's last wishes are faithfully and honestly carried out. The Indian Succession Act, 1925 provides a comprehensive framework governing the appointment, powers, duties, and liabilities of executors, ensuring that the estate of a deceased person is administered in an orderly, lawful, and transparent manner.
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