Indian succession laws are not straight and many a time they are not what you want. A will surely does resolve many issues of your succession; it ensures your wish of your wealth distribution is known to your loved ones at your death. But it’s not a one-day affair. There will be many institutions where your share of the money would be lying and each one of them has to be claimed. There might be some legal hurdles which need to be cleared by the family to receive the funds. To implement all these you require coordination of the will with all those institutions where your assets are lying. It’s not easy. That is where an Executor comes in.
Who is an Executor?
An executor is a person appointed by the testator, i.e., person writing the will, to carry out the wishes of deceased. In many countries, an executor is also called as ‘Personal Representative’. An executor can either be an individual or a company.
The Role of an Executor
The role of an executor is filled with huge responsibility since he manages the execution of the will, which can be as detailed as the testator would prefer. If the will goes for ‘Probate‘ (a court-supervised process by which the validity, dues and assets of a will are determined), then the executor is the person who has to oversee the entire process. In fact, it’s the executor’s responsibility to offer the will for probate if the situation arises. The court too issues the probate certificate to the executor authorizing him/her to execute the will as per the wish of the testator.
The other role of the executor involves working on the content of the will. Since it is the executor who has the complete responsibility he has to analyse the will minutely. If a trust needs to be formed through the will, then the trust deed will have to be analysed by the executor.
The first responsibility of executing the will is to pay off the funeral expenses, and obtain the death certificate, which will be needed to manage the financial affairs. Once death certificate is obtained, the executor can proceed with the disbursal of assets as per the will’s content.
The executor also has to locate the assets that have been mentioned in the will. This may include banking, investment, properties, or any other assets mentioned. The executor will have to ensure all the assets can be located with their original papers. Once the asset is located their present value will have to be determined to know the exact value of the estate involved. For these, the executor may seek services of legal professional or valuers. Once the total value of the estate is determined the first task will be to pay off all debts and liabilities, along with taxes if any. Although provisions would have been done in the will by the testator about how these dues should be paid, if at all required, some of the assets may be liquidated to do so. Once the dues are paid then the estate can be disbursed to the legal heirs as per the provision of the will.
One of the important roles that may come up for the executor is to manage the assets of the minor child. Many times individuals leave it to the executor, or there is no one else to manage the assets of the child as long as he/she is a minor. Once the child becomes an adult, the share of his/her legacy get transferred to the child. In such case, the role of executor is longer than just execution of the will. An important consideration to remember is that if the executor mismanages any of the assets he/she can be held liable for the same.
Who Can Be Executor?
There are no restrictions as to who can be appointed as an executor. Family/Friends/Relatives or even a professional, including a company, can be appointed as executor of the will. A beneficiary can also be named as an executor of the will. In general, the testator chooses and appoints the executor while writing the will. Where an executor is absent in a will, the court appoints an ‘Administrator’ to look after the distribution of the estate. However, an executor has the right of refusal before he/ she starts dealing with the estate. But once the responsibility is accepted by the executor he/she is legally bound to complete the task. The executor can be relieved only by a court order if he/she is not willing to act. Thus, there should also be a provision of an ‘Alternate Executor’ who can take up the responsibility if the appointed executor is not present.
Whom Should You Appoint?
Well, sometimes it depends on the family situation. In the case where husband, wife, and children are present generally spouse or children are chosen by most families for the role of executor. This also emanates from the fact that executor is a ‘fiduciary’ role, i.e., he has to work in the interest of the heirs and so, trusted individuals are preferred. But where large estates are involved such as multiple properties in different states or countries, then it may be a wiser choice to give the role of execution to a professional, which can be individual or corporate. A “joint execution” can also be looked at if there is a concern related to mismanagement.
An executor plays a very important role in a will. The responsibility is also a bigger one. You need an experienced individual to take up this responsibility. But it’s hard to find as many avoid responsibilities when a legal situation has to be addressed. Hence, it’s wiser that consent of the chosen executor is sought before you write his/her name in the will.
Points to Ponder
- Avoid appointing any witness as an Executor
- Since it is a legal situation, help the chosen person understand the role, especially if appointing a close family member such as spouse who may not be well-versed with it
- Seek the person’s consent so that the chosen executor is well prepared to shoulder the responsibilities
- Executor is not required to know the the content of the will at this stage
- If you foresee any legal trouble in future, it is advisable to involve a professional as executor
Source: yourpocketmoney.com; May 2017 | All views, thoughts and opinions expressed belong solely to the author.