A Will, is an instrument by which the Testator (person preparing the Will) expresses his desire and wishes for distribution of his estate upon his demise.
It is a legal declaration of the intention of a testator with respect to his property, which he desires to be carried into effect after his death, i.e. by virtue of such testamentary instrument, a person (testator/ testatrix) can make a disposition of his/ her property which would take effect after his/her demise.
A Will can be changed by the testator/ testatrix during his/ her lifetime, as many times as desired, either by revoking the earlier Will and preparing a fresh Will, or the previous Will can be modified by writing a Codicil.
Executor of a Will
Executor means a person to whom the execution of the last Will of a deceased person is, by the testator’s appointment confided. An executor is named in the Will and derives his authority from the Will.
Role of an Executor in drafting and executing a Will
The first question which comes to mind with respect to an executor is, who is the executor? An Executor is a legal representative of the deceased testator (who has made a Will) and who is either named or implied as such in the Will. An Executor is the person who disposes of or oversees the settlement of the assets of the deceased person in accordance with the wishes of the deceased testator, as enumerated in the Will.
Executor of a Will has no role to play during drafting of the Will, except, to accept or refuse to accept the roles and responsibilities of an executor of the respective Will, whereas, the role of executor of paramount importance to execute the Will of the testator after the demise of testator.
The executor derives the powers to dispose of the estate of the deceased testator in terms of the Will. Whereas, in case of ambiguity, the executor may dispose of the estate of the testator in best possible manner, as a testator would have done himself.
Role of an executor in addressing personal and financial disputes with regards to the contents of the Will
In case any dispute arises between the beneficiaries and legal heirs, at the time of execution of the Will of the testator, then the executor of the Will is expected to play an important role, i.e. Executor may act as mediator among family members of the deceased testator and ensure a smooth, peaceful and proper disposition of the estate, as also discharge responsibilities of maintaining proper accounts of estate, debts and discharge of liabilities, if any.
Why should one look at utilizing an Executor while drafting a Will
An Executor may (if he possesses knowledge of the legal complexities involved in obtaining a probate or knows the testator well) recommend certain clauses, which may be incorporated in the Will while drafting the Will.
An Executor (if he is a family friend or family member who knows the immediate family of the testator) may also be in a position to impartially consider certain aspects of obligations and may recommend the testator specific name (amongst others) of the beneficiary/ legal heir, who would be able to take onerous bequests in a better manner after the demise of the testator.
Challenges in execution of the Will in the absence of an Executor
As the Executor is the representative of the testator, who steps into the shoes of the testator to take charge of estate of the testator and ensure that the last wishes of the testator are executed in reality post demise of the testator.
If there is no Executor, and in case there is no unity among legal heirs of the deceased testator, the process of succession and inheritance of the assets and settlement of debts and liabilities of the testator will be affected.
If there is no Executor, and the Will is challenged, each legal heir claiming any interest or share in the estate of the deceased Testator will have to prove their claim and apply for letters of administration or succession certificate for dealing with the assets of the deceased.
The general law of the land is that unless certain exceptional circumstances can be proved, probate or letters of administration is granted to any or all persons claiming a right to the estate of the deceased, such that the probate or letters of administration are in respect of the complete estate of the deceased and not in fragments or parts.
Further, if no legal heir has filed for probate or letters of administration, a creditor of the testator may also apply for Letters of Administration, and if successful in obtaining the letters of administration, may result in delay in the legal heirs obtaining their rightful share in the estate of the deceased Testator.
Another issue in the absence of an Executor of the Will, is that the assets of the testator which need to be valued and consolidated and collated before a petition for probate or letters of administration can be filed in a court of competent jurisdiction, would become extremely difficult if the legal heirs do not agree on the valuation or appointment of some competent person to collate and declare the value of such assets.
Without a neutral or competent person to manage the estate and fulfil the obligations, responsibilities entrusted by the testator to the executor, the estate may fall into disarray and result in mismanagement of the estate of the deceased.
In the event the Executor declines to perform his obligations, or is unable to perform his obligations for any reason, and no other person is willing or able to act as an Executor, then the competent court may, on an application made by a person competent to make an application, appoint an Administrator to oversee the disposal of the estate (assets) of the deceased testator in case where the executant has not made a Will or where a Will is made but no Executor has been appointed in the Will or where the Executor is legally incapable or refuses to act as an Executor or has died.
When does an Executor seek advice of a lawyer or law firm?
Executor may seek an advice of a lawyer or a law firm after demise of the testator for the purpose of seeking Probate of the Will of the testator, especially for preparing the Probate Petition and appearing in the matter.
There is no specific/ fixed period, when the executor should seek advice of a lawyer, and it is case specific, including any legal problem which the executor may foresee in implementing or carrying out the wishes of the testator.
The role of an executor is like a trusted friend, confidante and representative, who actually steps into the shoes of the testator upon his demise and ensures that the last wishes of the testator are executed/ fulfilled in the manner, which would have been done by the testator himself. The Executor executes various roles and responsibilities, which includes conducting obsequential ceremonies, discharging obligations and liabilities, distribution of the estate among the legal heirs (after preparing a comprehensive list of his assets and having them valued, so that there is no dispute among the legal heirs for a larger piece of the pie). In the absence of an executor (for any reason), a Will is exposed and open to challenge, disputes and delays, which may affect the distribution of the estate of the testator in terms of his last wishes.The writer is Associate Partner of Rajani Associates