Who are the executors in a will and what are their responsibilites ?

What does a will's executor do ?

A will's executor is the person you designate to carry out the instructions laid out in your will. It doesn't matter if they are a friend, relative, or professional; what matters is that they are at ease and confident about handling your estate.

After printing and signing your will with two witnesses, it is crucial that you let your executors know where it is placed so they can locate it right away. They will then be in charge of requesting probate if necessary so they can carry out the instructions you specified in your will.

Your executors are in charge of managing your estate as well. In order to divide everything among your beneficiaries, this may entail shutting your bank accounts, paying off any debts, and selling or transferring property. Alternately, your executors may decide to hire a specialist to administer your estate in your place.

Usually, you can select anyone you trust to be your executor however, there are certain guidelines for choosing an executor which are as follows -

• The nominated executor must be at least 18 years old and of sound mind.
• If the original executor refuses to carry out his obligations when actual action is required, substitute executors should be appointed.
• A beneficiary of the will or a third party (in the event that a legal conflict is likely) may be named as the executor.
• The executor must be made aware that, although acting in good faith, they are nevertheless responsible for any errors or blunders.

There are two things to consider when selecting your will's executors.

• The volume of effort required- The quantity of effort involved should be your first consideration when selecting your executors. A competent friend or relative may feel at ease serving as an executor if your estate is not too large and doesn't necessitate the sale of any assets.
• How they'll feel following your passing- The personnel you select should also be chosen with consideration for how much they will like handling your estate. It's vital to keep this in mind when naming executors in your will since for some people, handling the executorship of a will can feel like an unwelcome weight on top of grieving and preparing a funeral.

The following are the responsibilities of an executor -

• Payment of funeral costs out of the testator's estate.
• Obtaining the testator's death certificate.
• Properly interpreting the will and distribution of assets to the intended recipient.
• Creating a list of the assets that will be sold or otherwise disposed of.
• Management of costs for all properties up until their disposal.
• Requesting probate, which is required by law and serves as the legal proof of the executor's power.
• Settlement of assets in accordance with a will.
• Payment of debts owed to the testator or the collection of such debts.
• Keeping track of every transaction.
• Defending the testator in any legal proceeding (apart from criminal and defamation cases).

The powers of an executor is as follows -

• When the testator passes away with young children as dependents, the executor can care for the children and pay for expenses like school fees. This power to apply the estate's income for the benefit and maintenance of young beneficiaries as well as to use the capital for their benefits is especially helpful.
• Having the authority to invest the estate in order to produce money for the estate's advantages, but exercising this authority carefully to avoid violating the executor's obligations to the beneficiaries.
• Having the ability to designate a trustee, an agent, or a nominee to manage trust assets. Because of this, the executor is permitted to designate experts to administer the estate, including investment managers or stockbrokers

You may be wondering, is having an executor in a will mandatory in India ?

The selection of an executor in a will is optional in India. A person (the testator) can indicate how their possessions and assets should be transferred after their death via a will, which is a legal document. Although it is customary to designate an executor in a will in order to facilitate the efficient management of the estate, doing so is not legally required.

The court can appoint an administrator to carry out the contents of the will if the testator decides not to name an executor or if the executor is unable or unwilling to perform his duty. Similar to an executor, the administrator will collect and manage assets, handle tax and debt payments, and distribute the estate in accordance with the terms of the will.

However, it is generally a good idea to choose an executor in your will because it enables you to select a trustworthy person to carry out your instructions and handle your estate. The executor needs to be trustworthy and able to manage the estate's financial and legal affairs.

However, what would happen if the executor passed away briefly after the death of the testator? The following actions normally take place if the executor of a will in India passes away during the estate administration process:

• Successor Executor: If a successor executor is named in the will, they would normally assume the duties of the dead executor. A successor executor is a person designated in the will as a backup or alternative executor.
• Court Appointment: The court may name a new executor or administrator to manage the estate if there is no successor executor listed in the will or if the named successor is incapable or unwilling to function. The probate court may be involved in this appointment's normal legal procedure.
• Role of the Beneficiary: In some circumstances, the will's beneficiaries may ask the court to appoint an administrator to carry out the contents of the will. The appropriate candidate for the administrator position would subsequently be chosen by the court.
• Legal Procedure: The procedure for choosing a new executor or administrator may include submitting a petition to the probate court, notifying interested parties, and having the appointment approved by the court.
• Administrator's Responsibilities: The executor or administrator would be in charge of gathering and managing the estate's assets, paying off debts and taxes, and distributing the estate in accordance with the terms of the will or, in the absence of a will, the applicable laws.

Can an executor and witness be the same person ?

An executor may be a witness to a will in India, but it is not recommended to do so. It is normally advised to have two impartial witnesses who are neither beneficiaries or closely connected to the testator (the person creating the will) present to witness the execution of a will, in accordance with the Indian Succession Act, 1925 and different state-specific legislation.

Although it is theoretically permissible for an executor to serve as a witness, doing so may cast doubt on the objectivity and veracity of the will. It is preferable to have two impartial witnesses who do not stand to gain from the will and do not have any conflicts of interest in order to ensure the legality and integrity of the will.

The presence of unbiased witnesses can support the claim that the will was executed voluntarily and without the use of force, fraud, or undue influence. It may also assist in avoiding future legal challenges to the will's legitimacy. To guarantee that the will is carried out legally, it is therefore advisable to select witnesses who are not beneficiaries and have no personal stake in its contents.