Executors:
An executor is a person who is appointed by a testator to execute his Will. In other words, an executor is duty bound to distribute the assets of the testator as per the provisions of his Will. A probate of a Will is granted only to an executor appointed by the Will.
Who can be an Executor : All persons capable of executing Wills can be executors. Even a minor can be appointed an executor of a Will, but a probate cannot be granted to the minor until he attains majority. A testator can appoint one or more executors. The appointment of an executor may be absolute or for a limited purpose or limited time. An executor as such does not derive any benefit under the Will, unless specifically provided for. However, as an executor has vast powers and the property vests in the executor until it is finally distributed to the legatees, it is therefore advisable to appoint a responsible and accountable person/institution such as a bank as an executor. The Executor is primarily appointed to manage the estate of the deceased for the benefit of the beneficiaries/legatees under the Will.
Legal status of the Executor : The executor is the legal representative for all purposes of a deceased person and all the property of the testator vests in him until the property is distributed as per the provisions of the Will. The executor is entitled to represent the testator in any legal action (not including criminal or defamatory proceedings). For example, an executor can sue for recovery of the testator?s debts. It is only the legal estate of the deceased that vests in the executor and the vesting is not of beneficial interest. The property vests in the executor only for the purpose of representation and administration.
Duties of an Executor :
- To ascertain the assets of the deceased person.
- To pay testamentary and funeral expenses.
- To collect the debts and assets of the deceased.
- To pay the debts of the deceased.
- To apply for a Probate, whenever necessary.
Applicable laws & Special provisions
Applicable Laws
- The Indian Succession Act, 1925
- Hindu Personal Laws
- Muslim Personal Laws
- The Indian Registration Act, 1908
Special Provisions
Hindus, Sikhs, Jains and Buddhists :
- A Will is not revoked upon the marriage of a Hindu, Sikh, Jain or Buddhists.
- The executor can also be the witness to the Will.
- A probate is mandatory in the event that a Will is executed in the cities of Mumbai, Calcutta or Chennai, to the extent that the Will pertains to immovable property in Mumbai, Calcutta or Chennai.
Parsis and Christians :
- A probate is mandatory in the event that a Will is executed in the cities of Mumbai, Calcutta or Chennai, to the extent that the Will pertains to immovable property in Mumbai, Calcutta or Chennai.
- On the marriage of a Parsi or Christian testator, his/her Will stands revoked.
Muslims :
Muslim Personal Law governs a Muslim testator's power to make a Will, the nature of the Will, its execution and attestation thereof etc. Under the Muslim Personal Law, a Muslim testator can make a Will orally or in writing and no form is required for such writing. However, it is preferable to have a written Will. If the Will is in writing it need not be attested. It may be noted that the provisions of the Indian Succession Act do not generally apply to a Muslim testator unless specifically stated in the Act.
In India, a person who is a major and of sound mind can make a Will and he can dispose of all or any part of his property by Will. However, there are two basic restrictions on the power of a Muslim testator to make a Will,
- A Muslim can bequeath only one-third of his property by Will.
- The heirs of a Muslim testator may consent to bequest in excess of one-third of the testator's assets.
A Muslim may change his Will during his lifetime or cancel any legacy. A Will may also become void if a Muslim testator, after making the Will, becomes unsound of mind and continues to be so till his death. Similarly, a bequest which is contingent, or conditional or in the future or is alternative to another, pre-existing one, would be void. If an executor is appointed by a Muslim testator, the powers and duties of the executor will be in accordance with the provisions of the Indian Succession Act which have been discussed elsewhere.
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