Choose the executor of will carefully

It's best if a neutral person is given the responsibility. Avoid giving the duty to a beneficiary

Ramesh Sharma had bequeathed a two-storey house to his two sons, Vikram (40) and Prateek (38), in his will. However, the elder one, who stays on the lower floor, was also named executor of the will. The father is no more and the younger one, settled abroad, wants to sell his house. Being the executor of the will, Vikram is not letting his brother dispose of the flat, still in their father’s name.

Courts are full of such disputes because wills are made without following the proper procedure. “Though the process of probate and administration of wills can be long-drawn and problematic in India, transferring of assets through wills remains the most convenient and simple manner to ensure division of property of a deceased as per his/her wishes,” says Diljeet Titus, managing partner, Titus & Co.

It’s the duty of the person who wishes to pass on the assets, called the testator, to take adequate precaution while preparing the will to ensure the distribution of property will be done exactly as he or she wishes. The testator, therefore, needs to carefully choose the executor, the one to carry out the terms and instructions. The person so appointed should be a neutral one, so that there is no conflict of interest, and he or she should be able to avoid disputes between the beneficiaries. It is best to avoid making a beneficiary as the executor, as this increases the chance of litigation.

Duties and power

An executor is a legal representative of the testator. Usually, his/her name is included in the will. The executor looks after the settlement or disposing of the assets of the person as the latter had wished. Being a representative, the executor can also file court cases on behalf of the testator and is allowed to incur expenses for the management of the assets or the estate of the deceased until its disposal.

In return, he or she would need to take care of the funeral expenses, prepare an inventory of the assets and their value, collect assets or debts due to the deceased and maintain an account of how assets should be disposed.

The law provides time to the executor to dispose or do the settlement of the assets irrespective of the demands or wishes of the deceased. This provision in law gives time to the executor to act. He or she can act any time within one year but cannot be compelled to do so. In case the person doesn’t want to act as an executor, he/she can apply to a court.



Experts say it’s best if the role of executor is given to the lawyers who have made the will. Many firms which offer a will making facility also offer a packaged deal to also act as executors. The charges depend on the value of assets and their location. For example, if the property is in different states, different rules for transfer and settlement would apply. In Goa, passing of the assets are also governed by Portuguese-era laws. Also, passing of inherited assets is more complex than one directly owned by the testator.

Disputes

If there is an expectation of dispute, lawyers say it’s best to hand over the assets along with a deed of gift, so that the dependence on the will can be avoided. Alternatively, the property can be gifted to a private trust and the person who should get the assets can be made a beneficiary in the trust, a mechanism being created to protect the interest of the person wanting to pass on these assets.

In the case of Vikram and Prateek, the younger one can sell the house if in possession of it because the testator had passed the property on to him. If not, he will need to file a suit for partition and possession of the property against his brother in a appropriate court of law.

“In the suit, he can also claim damages against his brother for using his property illegally. The damages or mesne profits can be equivalent to the rent prevalent in the said area for similar property,” says Gokul Das, managing director, Warmond Trustees & Executors. He adds this sort of legal action might take time but the younger son will get all the reliefs in due course. The average litigation period can range from three to five years.

Titus says the younger brother can also move the high court for removal of the elder brother as executor of the will. Under law, an executor of a will is duty-bound to honour the wishes of the testator to the extent possible. The personal interest of an executor cannot influence him in the discharge of his obligation under the will.