Updated: Dec 30, 2020
Executor and Administrator :
(1) Who is Executor or Administrator ?
Provisions are made in the Indian Succession Act relating to the protection of the property of the testator on his death. If the testator has named a person he is called a executor. If not so appointed, the court may appoint a person called an Administrator who gets the powers from the date of appointment by the court. Such an Executor or Administrator is the legal representative of deceased testator and all the property of the deceased vests in him.
(i) The executor gets the right to act as an executor, when the competent court, grants a probate of the will mentioning the rights of the executor.
(ii) In case of administrator the court grants letters of Administration empowering the Administrator to exercise his powers,
The executor gets power to sue in a court under the probate (in respect of Administrator, he gets under the letter of administration). Nothing prevents the Executor from suing the debtors of the testatpr, before taking out the probate. But the court will not pass a decree against a debtor for payment of money to the Executor unless the probate has been taken out by the Executor, (In the case of administrator he must have taken letters of administration).
Petition: For Probate
The executor should file a petition to the competent court, with the will, praying for grant of a probate (i.e., authority). A probate shall be granted only to an executor appointed by the will (the appointment may be express or implied). It is not granted to any person who is a minor or who is of unsound mind. Several persons may be appointed as executors. Probate may be given to them simultaneously or at different times. The probate is granted, in the prescribed proforma, with the seal of the court. It is valid retrospectively dating back to the date of death of the testator and all acts, done by the executor become valid. An executor may renounce his job orally in the presence of the judge or by writing,duly signed. If he fails to take charge within a reasonable time, an administrator may be appointed.
Administrat or Appointment ;
The procedure to the issue of probate is applicable for the issue of "Setters of administration" to an Administrator i.e., petition should be filed to the District court. He may be appointed in case of a testate or intestate succession. Qualifications are in case of intestate succession a person connected with the testator by marriage or by consanguinity (blood relationship) is entitled to be appointed. If the testator has not appointed an executor or if appointed he renounces or dies or refuses to act, or if there is no executor and no residuary legatee at all, a person who is entitled under intestate succession may be appointed. In his absence, a legatee or in his absence a creditor may be appointed as administrator. The person must have attained majority and must be of sound mind. Letter of administration is granted with a copy of the will. The court shall take a bond (with or without securities) from the administrator. No letters of administration are to be issued within fourteen days of the death of the testator.
Ch, 5.6 Powers and Duties of Exacutor or Administrator :
An executor is a person appointed by the testator under the will. He accepts to act, and takes out probate from the court, The probate gives him the Representative title to act as executor.
An administrator is a person duly appointed by the .court and to whom 'letters of administration' have been granted. The letter gives him the Representative title to exercise his powers as Administrator, The Indian Succession Act has provided for the various powers, duties and functions of the Executor and Administrator.
(i.) Legal Actions:
The executor or administrator has the power to sue in all causes of action that have survived -the testator. He may take all measures to recover the debts in the same manner as the testator. All demands and all rights to prosecute or to defend come to the executor or administrator. However such causes of action as defamation, assault, etc,, do not survive as they die with the testator.
E.g.: A sues to divorce his wife W, A dies. This does not survive to executor of A, He has the power to dispose of the property of the testator vested in him in a manner which he thinks fit and proper. If.the testator was a Hindu or Mohammadan, the permission of court must be taken to martgage, to sell, to* charge, to gift away or to lease out --any immovable property.
Otherwise it becomes voidable.
(iii) General Powers'.
He is entitled to incur expenditure for the care of the property and for its proper management. He may also incur expenditure for religious, charitable and other objects as may be reasonable and proper. But, he must take the sanction of the court.
He is not entitled to any commission or agency charges higher than what is prescribed by. law. If he buys any property of the deceased, the transaction is voidable.
Executor is bound to carry .out the directions given under the will. He should not try to act much wiser and better, than the pious, old fashioned and ignorant testator. He can vary the directions as perCypres Doctrine (i.e., for similar use or to approximate.to testator's intentions). The Administrator should act as per the directions of the court.
(vi) Funeral Expenses :
It is the duty of the executor to provide funds for the performance of the various funeral ceremonies, befitting the status and dignity of the person and subject to the property left by testator.
Executor or administrator shall within six months from the date of the probate or letters of administration produce to the court an Inventory containing a full and true account of all the property and also all the credits and the debts of the testator. Further within one year he must produce an account of the latest position thereof. The High Court has prescribed the method of doing the inventory. If he does not make the Inventory he is guilty and punishable under I.P.C. Sn. 176. He should not prepare a false inventory. If made he becomes punishable under I.P.C. Sn. 193.
(viii) Collections :
He shall collect and put together with reasonable diligence all the property and also all the amounts due from the debtors.
He shall pay, first, reasonable funeral expenses, and death-bed expenses including medical expenses and boarding and lodging if any. Next he shall pay towards the cost incurred, in obtaining probate or letters of administration and judicial expenses if any. He shall pay wages in respect of services rendered to the deceased i.e., expenses to any labourer, artisan or domestic servant. Next he shall pay the creditors. Hence no creditor has a right of priority. Hence the principle of reteabie distribution i.e., distributing the assets pari psssu (that extent possible to pay) applies. Only after paying the debts, the legacies may be first paid up. If the assets are not sufficient to pay all the general legacies there may be an abatement of such legacies or reduced ratably.
(x) Liabilities : Devastavit:
In regard to liabilities the law of Devastavit applies. Executor or administrator is liable to make good the loss or damage caused to the assets due to his misapplication. Similarly, he is liable for his negligent act towards the assets.
1. A an executor compromises with a debtor for 5000 Rupees in respect of a pronote of Rs. 10,000 when the debtor is in a sound position to. pay. This is Devastavit.
2. An administrator leases out a building for Rs. 2000 when it can really fetch Rs. 4500 per month.
3. Deliberately executor does not keep huge monies in Fixed Deposits. These are examples Executor is liable for loss.
Ch. 5.7 Citation
Means "a reference to prior title." Letters of administration should be granted to the residuary legatee in the absence of executor or persons related by marriage or blood to the testator. Hence if a prior title is cited and proved, the letters of administration cannot be
issued to the Residuary legatee. This is called Citation. The principle is that if a prior party has a title to the grant of probate or letters, that person must be cited, before the letters of administration are granted to the next person.
The order mentioned in the Indian Succession Act is :
(ii) Persons related by marriage or blood
(iii) Residuary legatee
(iv) Specific legatee
Absence of Citation:
Citation is essential before the letters of Administration are granted to the petitioner. If there is no citation and letters are issued to some other person, then the letters may be set aside as the proceedings are defective. Citations must be issued and published as required by the Indian Succession Act.