If you have been named as executor in someone's will, you are the person the will appoints to carry it out. From the day of the death you are the deceased's legal representative for all purposes. Once probate or letters of administration are granted, you have 6 months to exhibit an inventory of the estate in court.

The executor's authority comes from the will and runs from the death, before any court order. The Indian Succession Act fixes what the executor pays first, when the executor accounts to the court and what the executor may not do with the estate, and these rules apply equally if you are writing your own will and choosing an executor.

Where this page sits

The court process that confirms an executor's authority is explained in how to probate a will in India, and registered wills are covered in registered wills and probate. A will that was registered is entered in Book 3, the register of wills, at the Sub-Registrar's office where it was registered, under section 51 of the Registration Act, 1908.

Related guides:

• How to probate a will in India
• Registered wills and probate
• Witnesses for a will
• Probate or letters of administration
• Will format in India: how the executor clause is worded

What Does Executor of a Will Mean?

An executor of a will is the person the will appoints to carry it out. Section 2(c) of the Indian Succession Act, 1925 defines the role, and the Hindi word for it is निष्पादक (nishpadak).

An administrator is a person the court appoints to run an estate where there is no executor.

What Is the Role of the Executor of a Will in India?

The role of the executor of a will in India is set by section 211, which makes the executor the deceased's legal representative for all purposes and vests the deceased's property in the executor. Where the deceased was a Hindu, Muslim, Buddhist, Sikh, Jaina or Parsi, property that would otherwise pass by survivorship to someone else does not vest in the executor.

The executor pays for the funeral, collects the property and the money owed to the deceased, pays the debts in the order the Act fixes, and then hands over what the will leaves. A legatee's title to a legacy is complete only when the executor assents to it.

Can an Executor Act Before Probate, and What Does Probate Add?

An executor can act from the death, because the executor's authority comes from the will itself. Probate, when a court grants it, establishes the will from the date of death and makes valid everything the executor did as executor in the meantime, under section 227.

Under section 273, a grant of probate is conclusive against every debtor of the deceased and everyone holding the deceased's property, and a bank or debtor who pays the executor under it is fully protected. Probate is granted only to an executor the will appoints, whether it names the executor in so many words or by necessary implication.

Someone who meddles with the estate when there is no rightful executor or administrator becomes an executor of his own wrong and must account to the rightful executor, the creditors and the legatees. The Act makes an exception for looking after the deceased's belongings, paying for the funeral or meeting the family's immediate needs.

Who Can Be an Executor of a Will in India?

Anyone can be named as executor, a minor included. Probate, however, cannot be granted to a minor or to a person of unsound mind. A group of individuals can take probate only if it is a company that meets rules made by the State Government.

Where a minor is the sole executor, the court may grant letters of administration with the will annexed to the minor's guardian, or to another person it thinks fit, until the minor comes of age. Probate is granted to the executor at that point and not before.

Where a will names several executors, probate may be granted to all of them together or at different times. Any one of them who has proved the will can exercise the powers of all, unless the will says otherwise. If one executor dies, the powers of the office pass to the survivors. An executor who lives outside the State can have an attorney or agent take letters of administration for the executor's benefit until the executor takes probate personally; a will made from abroad for Indian assets is covered in NRI will for Indian assets.

Can an Executor of a Will Be a Beneficiary or a Witness?

An executor of a will can be a beneficiary under it, and can also be a witness. Section 68 says that neither being an executor nor having an interest under the will disqualifies a person as a witness to prove it; who may attest the will in the first place is covered in witnesses for a will.

If the will leaves a legacy to someone it also names as executor, section 141 says that person does not take the legacy unless they prove the will or otherwise show an intention to act as executor. Under the Act's illustration, arranging the funeral as the will directs shows that intention, even where the named executor dies a few days later without proving the will. An executor who is also a legatee must then assent to their own legacy, as they would to anyone else's.

What Are the Duties of an Executor, Step by Step?

Step 1: Pay for the funeral

Under section 316 the executor provides funds for the necessary funeral ceremonies, in a manner suited to the deceased's standing, if the deceased left enough property for it.

Step 2: Collect the property and the debts owed

Section 319 requires the executor to collect the deceased's property, and the debts owed to the deceased at the time of death, with reasonable diligence. A debt allowed to become time-barred through neglect is a loss the executor makes good personally.

Step 3: Pay the debts in the order the Act fixes

1. Reasonable funeral expenses and death-bed charges, including medical fees and board and lodging for the last month.
2. The cost of obtaining probate or letters of administration, and of any court proceedings needed to administer the estate.
3. Wages for the last 3 months owed to any labourer, artisan or domestic worker.
4. All other debts, equally and rateably as far as the assets go, including any the deceased owed the executor.

Step 4: File the inventory within 6 months of the grant

Once probate or letters of administration are granted, section 317 gives the executor 6 months, or longer if the court allows, to exhibit in that court an inventory of the property, the credits and the debts owed to the estate.

Step 5: File the account within one year of the grant

Within one year of the grant, or longer if allowed, the executor exhibits an account showing what came into their hands and how it was applied.

Step 6: Hand over the legacies

An executor is not bound to pay or deliver any legacy until one year after the death, even where the will says six months. That year runs from the death, while the inventory and account deadlines run from the grant.

How Powerful Is an Executor of a Will?

Under section 307 an executor may sell, mortgage or otherwise dispose of the estate's property, wholly or in part, as they think fit. Under section 305, the executor may also sue on any cause of action that survives the deceased and recover debts as the deceased could.

Where the deceased was a Hindu, Muslim, Buddhist, Sikh or Jaina, the executor's power over immovable property is subject to any restriction the will imposes, unless probate has been granted and that court permits the sale by an order in writing. An administrator, by contrast, needs the court's previous permission to mortgage, sell, gift or exchange immovable property, or to lease it for more than 5 years.

If an executor buys any part of the estate, directly or indirectly, anyone else interested in that property can have the sale set aside. An executor who misapplies the estate or causes it loss must make the loss good personally.

Can an Executor Refuse the Job, or Be Removed?

A named executor can refuse by renouncing, either orally before the Judge or in a signed writing, and the renunciation stops that person from ever applying for probate of that will. Before anyone else can be granted letters of administration, the court issues a citation calling on the named executor to accept or renounce. If the executor renounces, or does not accept in the time allowed, the will can be proved and letters of administration with the will annexed granted to the person who would be entitled if there were no will.

Where the will also leaves the named executor a legacy, section 141 lets that person take it only by proving the will or otherwise showing an intention to act as executor.

On an application, the High Court can suspend, remove or discharge a private executor and provide for a successor. After a grant, it can also give the executor directions on the administration. An executor who intentionally fails to exhibit the inventory or account when the court requires it is treated as having committed an offence. Wilfully failing to exhibit one, or exhibiting one that is untrue in a material respect, is just cause for the court to revoke the grant.

Is an Executor Paid?

Section 309 does not publish a commission rate itself; it caps what an executor may take as commission or agency charges at the rate fixed for the Administrator-General. A will may also leave the executor a legacy, which the executor takes by proving the will or showing an intention to act.

What Happens if the Will Names No Executor?

A will that names no executor is still a valid will. The estate is then run by an administrator the court appoints, who takes letters of administration with the will annexed; the difference between the two grants is explained in probate or letters of administration.

How Does WillJini Act as Executor?

WillJini can be named as the executor in your will, so a neutral professional administers the estate instead of a family member. WillJini describes its will executorship service as "professional executor support to ensure your Will is carried out exactly as written", chosen where "family members may not be comfortable handling legal formalities, or conflicts may arise between heirs."

The arrangement works in four steps:

1. You and WillJini agree the terms of the arrangement.
2. You sign an executorship agreement with WillJini, with a basic commitment fee.
3. Your will names WillJini as executor and refers to the agreement.
4. After the death, the beneficiaries approach WillJini, and the balance of the fee is paid from the estate.

WillJini also offers will writing and probate of a will.

FAQs

Is an executor necessary for a will in India?

A will is valid without an executor. Where no executor is named, the court grants letters of administration with the will annexed to an administrator, who then runs the estate under the Indian Succession Act.

Can an executor of a will be a beneficiary?

A person named as executor can also take a legacy under the same will. Section 141 lets them take it only if they prove the will or otherwise show an intention to act as executor, and section 335 requires their own assent to complete their title.

How powerful is an executor of a will?

An executor may sell, mortgage or otherwise dispose of the estate's property as they think fit under section 307, subject to any restriction in the will over immovable property where the deceased was a Hindu, Muslim, Buddhist, Sikh or Jaina. Anyone else interested in the property can have the executor's own purchase from the estate set aside, and an executor who causes the estate loss makes it good personally.

How many executors can a will have?

A will can name several executors, and probate may be granted to all of them together or at different times. Any one who has proved the will can exercise the powers of all unless the will says otherwise, and the powers pass to the survivors if one dies.

What is the first thing an executor should do?

Section 316 makes it the executor's duty to provide funds for the necessary funeral ceremonies, if the deceased left enough property, and section 319 requires the executor to collect the property and the debts owed with reasonable diligence. Under section 303, preserving the deceased's goods or providing for the family's immediate needs does not make a person an executor of his own wrong.