Executor or Legatee Under Will: Roles and Responsibilities

Apart from change, death is the only constant. Someone has rightly said death is as inevitable as taxes.

One of the most vital decisions a person should make when making their Will is whom to appoint as executor. An executor set under a Will, in effect, stands in the person's place after death. Also, an officer stands in the position of the dead even when the Court appoints them.

Generally, the executor is set by name in the Will. When the person fails to select a person while making a will, it seems that a specific person has been chosen to perform the essential duties of an executor. In that case, the executor is known as the "executor as stated to the tenure" of the Will.

An individual can take the part of an executor on himself by "intermeddling" or working with the estate's assets. They are known as "executors de son tort."

If someone is set an executor by a Will but doesn't wish to take the role, they can "offer Probate" by filing the proper documents with the Court.

Executor: Meaning

An executor of the Will is the one who executes the Will after the testator's death. He is named in the Will by the testator and is a legal agent of the dead one, and they can either be named or told by the Will. The executor and legatee role is essential in Indian Society as it ensures that after that person's death, there will be someone who can act as a property holder. The Executor is selected either by the testator on their will or by a court. Key points to know about Executor:

a) An executor helps a person's estate after their death.

b) An executor is usually called by the one in the will by their death or by the court.

c) The main duty is to carry out the wishes of the dead, depending on instructions spelled out in their will or trust records.

d) It means ensuring that assets are spread to the intended heirs.

e) Being an executor is a large duty with potential risks and difficulties.

Usually, an executor can be a member of the family. But in case of a complicated will, a lawyer or an officer will be appointed to be the executor. If no executor is available at that time, then the government will appoint a public trustee for the work.

Who Can Be a Legatee or Executor Under the Will?

Operating as an estate executor doesn't mean you need a law degree or further legal training. There are still some needs that are required to be fulfilled. According to the law, an executor nominated by the will should be eighteen or more. If the person making the will set someone who is minor during that person's death, then their parent or guardian has the right to apply to be the administrator. When the child turns eighteen, he will have the right to be the executor and take the property under their consideration.

The legal capabilities for serving as an executor are necessary. Yet whoever is best fit to decide on the estate after their death.

What Are the Authorities of the Executor?

The executor has a great deal of authority over the estate as they are legally liable for making all the decisions related to the distribution of the estates of the dead one. 

The authorities include:

1. An executor has the authority to either sue or take legal actions for all causes of action that survive the dead person and may exert the same power to get the debts as the dead has when living. Its power includes all the rights to take action or special proceedings existing either in favor or against a person after death.
2. They can dispose of the death's property as per section 211, as they may consider fit. Yet, sometimes, the nominee shall be subject to some limitations and needs. 
3.  Apply for the income of the estate for the maintenance and benefit of the beneficiaries (minor) & to use the rest capital for their help. It is mainly useful when the person passes away having young children. Then the executor looks after the expenses of the children.
4. Invest in the estate to get revenue for the uses of the estate. Yet, the power to invest must be used with an alert to not breach the duties of the executor to the other beneficiaries.
5. Appoint an agent. It allows the executor to appoint experts to manage the investments or stocks or to manage the estates of the dead one.
6. Hiring an attorney to help with the executive parts of the estate;
7. Collecting all of the estate assets and allocating them as per the will.
8. Selling any asset or property under his estate.
9. Paying the debts and taxes of the estate.
10. Managing asset inheritance as stated in the will of the dead person.
11. Validating the testament if anyone challenges the authenticity of it by the Probate Court.

 If the executor doesn't wish to act as an executor even when his name is mentioned. In this case, the court will appoint a new executor having the same power over the estate as the previous executor.

What Are the Responsibilities of the Executor or Legatee?

An executor should have diligence and honesty to perform their fiduciary duty. The executor performs several duties that vary depending on the will's complexity. Listed below are some common duties that an executor has to perform:

As to the Dead’s Funeral:

 An executor must give funds for the execution of the required funeral rites of the dead person in a way that is likable to their situation. That is, they have left sufficient funds for it.

Submit the Will in Court:

The prime duty of an executor is to find and understand the will of the dead one. After that, they have to submit the will to the desired court to open up the estate legally that needs to be allocated. It also involves choosing if they want to sell the estate of that person or not.

After submitting the will in court, the judge will decide if the will is legal, by the law, and has no errors.

Get a Copy of the Will and File It With the Local Probate Court:

The executor must locate, read, and understand the will. Even if probate isn't required, it should still be filed with the probate court. During this step, the executor also decides who will take the property.

Inform Banks, Credit Card Firms, and Government Agents About the Person’s Death:

The Social Security officers and the dead person's bank and credit card firms need to be notified after the person's death.

Choose What Kind of Probate Is Required:

As the inheritance laws may ease the passing of certain properties without probate (including the property handled by both husband and wife jointly), probate is only occasionally required. The estate's value may also permit it to pass by an expedited process. If probate is needed, one must file a petition with the court to be assigned an executor. One may need a lawyer's advice to achieve this. 

Dealing With Inheritance Tax as an Executor of a Will:

An executor must deal with the tax inheritance through HMRC. The executor is accountable for evaluating the estate, doing the right IHT forms, and paying all the dues (if any). The executor will thus have to deal with numerous organizations and experienced ones to get this data together and must also consider what exemptions and ease are there to estimate the total liability. Hence, it can take some time to complete depending on the complexity of the estate.

Creating a Bank Account for All the Funds and Settlement of Ongoing Bills:

If the dead person is owed money, such as any paycheck or any other bills, this account will help hold them. An executor must be on the watch for utilities, mortgages, and similar charges that are still required to pay in the accounting year.

Settling the Finances of the Deceased One:

The Executor has to deal with the finances of the deceased. These finances include paying the deceased's income tax from their death to the end of the authority period and any capital gains tax liability on the disposal of assets. If there was an inheritance tax liability, it is vital too that the executors take assurance from HMRC that there are no other inquiries left and that the situation is settled.

Suppose there are fewer assets in the estate to pay all liabilities. In that case, the estate will be insolvent, and there is a defined order that the executors will follow while paying all the liabilities.

Placing A Notice of The Deceased's Estate:

Before distributing the properties to the beneficiaries, executors must save themselves from any liability they aren't aware of. It is thus advised to place a notice of the deceased's property in the local newspapers. It shows that enough effort has been made to find creditors before allocating the estate to beneficiaries, but it does not absolve executors who have 'notice' of potential debt.

Distributing the Estate:

Once probate has been given and the dead's finances have been resolved, an executor can start to distribute the estate among the beneficiary. Before distributing the estate, the executor has to calculate all the assets, including bank accounts, to an executor's account or client charge if lawyers are acting for them. Other assets, including shares and investments, property, or land, can be sold or transferred to the beneficiary as per the will.

The executors must calculate each beneficiary's portion and has to take consent from every beneficiary regarding the payment. Some beneficiaries can be happy taking the estate as an asset, while others want to dissolve it and get the amount. If the will states an estate or a part of it belongs to a trust, then the executors have to think about what to do with the estate regarding their possible future responsibilities as trustees.

Keeping The Account of The Deceased's Estate:

To show they have helped the estate properly, the executor has to keep all its records and make a final set of their estate's account. These accounts must be shown to beneficiaries and their consent of the funds aimed.

Application of moveable property to pay the debts where the estate is not in India

(1) If the home of the dead one isn't in India, the application of their moveable property to pay the debts is to be held by the Indian laws

(2) As per sub-section (1), No creditor, after getting the payment of their debt, shall be allowed to get the share in the profits of the immoveable estate of the dead person until they bring such amount into account for the use of the other creditors.

(3) It shall not be applicable where the dead person was a Buddhist, Hindu, Muslim, Sikh, Jain, or any exempted person

Conclusion:

The Executor's role is like a trusted friend, companion, and agent who steps into the person's place upon his death and ensures that the person's last wish is executed in the way he would have been himself if he was alive. The Executor performs diverse roles and duties, such as directing sequential rituals, removing burdens and harms, and distributing an estate to the legal heirs. Without an Executor, a Will is revealed and open to question, delays, and conflicts, which can affect the allocation of the person's estate in terms of their last wish. We hope this article gave you clarity regarding the executor and their responsibility. If you want to have more information, feel free to contact us at +919284293610 or email us at [email protected].

FAQ

After how many days can an executor act?

A nominated executor can usually gather details about the property or asset after the person's death. Still, until a Probate Registry gives probate, a financial institution that is bank holding assets will not allow them to collect the estate.

Can an executor be a beneficiary in a will?

Yes, an executor of a will can be a beneficiary, but there are certain things a person should understand before making the decision. Estate planning may be complex, and if a person has an intricate estate, they must discuss their options with their lawyer or financial advisor. With that, they must consult their decisions with your executor and other beneficiaries to avoid misinterpretations that may happen in the future. It gives the beneficiaries a way to hear why they have made the decisions and allows them to get answers to their doubts.

How can a person execute the Will?

The execution of the Will begins after the death of the person creating the Will. A will must be written by the one as stated in section 74 of the Act. The Will must be written by the person or their lawyer, but there must be at least two third parties to witness the Will.

How many executors can a person put in their will?

A person can add as many names to their executors as they want and can choose alternate executors if their initial choices cannot act. Yet, the maximum number of executors who can execute at a time is four.

Is an executor necessary for a will in India?

It is not essential to appoint an executor for the will in India. As per the law, probate can be given only to the executor, as it is applied and granted to the appointed executor.

What power does an executor of a will have in India?

An executor has the legal responsibility of carrying out the will's provisions. An executor has the power to carry out the wishes of the dead, including finding the original will, applying for probate, and solving financial issues.

About The Author: 

Adv. Gaurav Ghosh is a highly experienced lawyer with over a decade of practice across Courts and Tribunals in Delhi. His expertise spans constitutional, criminal, commercial, consumer, energy, environmental, medical negligence, property, sports, direct taxes, and service and employment matters. He also provides external counsel services as well as advisory and litigation services and support in Calcutta, Chennai and Lucknow through his team at DLC Partners. Known for his versatility and client-centric approach, Gaurav is a trusted legal advisor in complex cases across multiple jurisdictions, offering strategic and curated solutions for individuals and companies.