Executor Duties explained: this guide covers what it means, who it applies to, the step-by-step process, documents required, fees, due dates and penalties in India — so you can stay compliant with confidence and avoid costly mistakes.
The executor duties under a will cover funeral expenses, death certificate, inventory, probate, settlement of assets and records. Section 68 lets an executor also attest the will, but he then takes no benefit under it.
Who carries the executor duties
An executor is someone named in a will to manage the deceased person's estate. He is responsible for carrying out the deceased's wishes and instructions, including paying off any debts, making funeral arrangements and distributing assets to beneficiaries.
Typically an executor can be a chartered accountant, a lawyer or a family member. The testator can appoint the executor, or a court can appoint one if there was no prior appointment. The executor may need to apply for special legal authority before he can deal with the estate.
The handbook states that "the executor is also known as an administrator". In ordinary usage under the Indian Succession Act the two are different offices, and the difference has practical consequences.
An executor derives his appointment from the will and, where probate is required, takes probate — which the handbook itself describes as "a copy of the will certified by a court" that "can be granted only to the executor appointed by the will".
An administrator is appointed by the court where there is no executor, or none who can or will act, and takes letters of administration — the instrument the handbook itself names in its NRI chapter for a foreign will.
The handbook's own text therefore uses both terms correctly elsewhere. Read the single sentence equating them as loose usage, and keep the distinction when advising, because only an executor named in the will can be granted probate.
The ten executor duties
The handbook lists the duties and responsibilities of an executor as:
- Meeting the funeral expenses from the estate left by the testator.
- Obtaining the death certificate of the testator.
- Interpreting the will in the right manner and distributing assets to the correct beneficiary.
- Drawing up an inventory of the assets to be sold or disposed of.
- Expense management for all the properties until their disposal.
- Applying for probate, since it is the official evidence of the executor's authority, where probate is mandated by law.
- Payment of money due from the testator, and collecting money due to the testator.
- The settlement of assets as directed in the will.
- Maintaining records of all transactions.
- Representing the testator in any legal action, excluding criminal and defamatory matters.
Read as a group, four of these executor duties describe work that a chartered accountant already does — which is why the handbook names the profession first among possible appointees.
The executor must draw up an inventory, manage expenses on the properties until disposal, pay what the testator owed and collect what he was owed, and maintain records of all transactions. That is estate accounting, running for as long as administration takes.
It also has a tax consequence the handbook records separately. Under section 168 of the Income Tax Act, 1961, the income of the deceased's estate is taxable in the hands of the executor until the distribution of assets is complete. Where there are multiple executors, the estate's income is taxed as if it were an association of persons, and each executor is assessed separately from his own income.
So an executor takes on a filing obligation for the estate, distinct from his own return, that lasts until distribution finishes. That is worth explaining to a family member before they accept the office.
Why the executor duties are worth conferring on someone
The handbook lists four advantages of appointing an executor:
- Beneficiaries are assured of proper handling of the property.
- By appointing a third person as executor, the family can be relieved of the administrative responsibilities of executing the will.
- If the executor is appointed in time, it saves time and money and proves advantageous to the beneficiaries.
- Many cases have been pending in courts due to family disputes, which can be avoided by appointing an executor who will be neutral and fair in his dealings.
Its draft formats all provide for a substitute executor — appointing a named person and, "in case he were to predecease me", a second named person. That is a small clause that avoids the estate falling back on a court appointment.
Section 68 — the executor as attesting witness
An executor is not disqualified from being a witness. Although a legatee cannot claim under a will if he or his spouse is a witness to it, there is no such bar on an executor, and thus the same person may validly be the executor as well as an attesting witness. But in such a case, he cannot take a legacy or other benefit under the will.
Section 68 is useful precisely where the executor is a chartered accountant or lawyer taking no share of the estate. Such a person can attest the will and still act, which is convenient when the will is executed in the adviser's office.
It is useless where the executor is the widow or eldest son — the usual appointment in a family will. The bar attaches to taking a benefit, not to holding the office, so a beneficiary-executor who attests keeps the executorship and loses the legacy.
The safe practice is to keep the roles separate: attesting witnesses who are neither executors nor beneficiaries, and reliance on section 68 only where a disinterested professional executor is the only witness available.
Probate, and the authority behind the executor duties
Probate is a copy of the will that is certified by a court, and it can be granted only to the executor appointed by the will. It establishes the authenticity and validity of the will. Once a will has been probated, the handbook notes, it becomes difficult to attack — nobody can file a legal case against it on the ground that the testator was of unsound mind — and the process is therefore highly recommended by experts in any case, even where it is not compulsory.
Where probate is mandatory, the handbook lists three situations, in its NRI chapter: where the will is made in a foreign country and the executor is enforcing it in India for assets located here; where the testator is a Hindu, Buddhist, Sikh, Jain or Parsi making a will in Kolkata, Chennai or Mumbai; and where the testator holds and bequeaths immovable property within the limits of one of those three cities.
That list is given without citation to the section, and it names Parsis alongside the other four communities. Read the relevant provisions of the Indian Succession Act directly before advising that probate is or is not compulsory in a given estate.
Practical checklist on executor duties
- Name an executor and a substitute in every will.
- Explain the ten executor duties to the proposed appointee before the will is executed.
- Confirm the appointee accepts that the executor duties may run for years, not weeks.
- Warn a family executor about the section 168 filing obligation for estate income.
- Where there will be multiple executors, explain the AOP treatment.
- Prefer a neutral third party where family dispute is likely.
- Keep attesting witnesses separate from executors and beneficiaries.
- Use section 68 only for a professional executor taking no benefit.
- Check whether probate is compulsory from the Act, not from a summary list.
Common mistakes with executor duties
- Naming one executor with no substitute.
- Letting an executor-beneficiary attest and lose the legacy.
- Treating executor and administrator as the same office.
- Overlooking the estate's own tax filing under section 168.
- Assuming probate is never needed because the will is registered.
- Appointing a beneficiary as sole executor in a contested family.