When a Testator writes a Will, it is imperative that at least one Executor of legal age and sound mind is named. If the Executor belongs to the female gender than the correct terminology is Executrix. Henceforth collectively the term Executor refers to both genders.
This article merely focuses on the main steps that needs to be taken by the Executor to administer the estate after the demise of the Testator and therefore not an exhaustive list. As the name implies the primary task of the Executor is execute or carry out the Testator’s wishes after demise.
It goes without saying that the Executor must be someone in whom the Testator must have utmost confidence that the wishes as contained in the will be carried out. Therefore, it will be prudent to know before appointment if the intended Executor is able and willing to accept the position.
Notwithstanding that no one knows his date with destiny, it is better to name an Executor who is younger than the Testator so that the issue of the Executor predeceasing the Testator does not arise and to obviate the complications arising therefrom. Alternatively, it will be better to name an alternative Executor in the event the named Executor predeceases the Testator.
The tasks to be performed by the Executor
The role of an Executor is an onerous one, as failure to fulfil and comply with the legal requirements can result in penal sanctions. Briefly, the main tasks that an Executor may have to undertake upon the demise of the Testator, are as follows:-
i) if the family members of the deceased fail to act on the Will, the Executor can take possession of the Will and the original Death Certificate, in the event situation permits, to extract the Grant of Probate. However, the Executor can leave it to the family members, if they so desire, to extract the Grant of Probate.
ii) if the Testator had deposited the Will with the Executor without its contents being made known to the beneficiaries it will be prudent for the Executor to read out or make known the contents of the Will to the beneficiaries before applying for the Grant of Probate. More so, if the estate has numerous properties and beneficiaries.
iii) if the Executor is tasked with the responsibility of extracting the Grant of Probate the Executor must ensure that all the properties stated in the Will are accounted for. This would be an easy task if all the properties are stated in the Will itself but sometimes it will be stated in general term that “all moveable and immovable properties are given to such and such beneficiaries” without identifying the properties in question. In such a case the Executor will invariably will have to rely on the family members for information on the properties the Testator has left behind. The properties need to be identified as they will have to be stated in the application for Grant of Probate including personal effects such as jewelleries, watches, ornaments, etc. The process of accounting for the properties will include taking possession of all the relevant documents such as land titles, vehicle registration certificates, details of bank accounts, shares and mutual trust certificates, safe deposit box number, etc. If no nomination has been done for insurance policies and Employment Provident Fund they must be included in the list of assets. Basically, all properties which would require dealing with third parties like land office, banks, securities commissions and so forth to effect change into the name of the beneficiaries or for purposes of liquidation and distribution.
iv) having collected the relevant documents and/or particulars of the assets, it would be prudent for the Executor to appoint a lawyer to apply to the High Court for a Grant of Probate, which document would empower the Executor with legal authority under seal issued by the High Court to administer or manage the deceased’s estate.
v) once the Grant of Probate is granted and before extraction the Executor must affirm an Administration Oath which affirms his duty to administer the estate faithfully according to the law.
vi) once Grant of Probate is extracted then the Executor also plays the dual role of being a Trustee in respect of the properties comprised in the deceased estate until distribution. Consequently, he must first pay from the estate all just debts, funeral expenses of the Testator and dues such as taxes first before proceeding to distribute the properties as set out in the Will and for these purposes the Executor may even be required to liquidate part or whole of the estate, if the need be. Therefore, the Executor may have to carry out enquires to must ensure that all debts, testamentary expenses and taxes due to the state are accounted for.
vii) sometimes, in carrying out the duties if a legal question arises, for example about the priority of payment and if the Executor is unsure of the legal position the Executor can seek legal counsel and the cost will be defrayed from the estate. Also, a situation may arise where the Executor have to partake in legal proceedings in the event a matter related to the estate or distribution thereof is taken to court.
viii) the Executor has the duty to render proper accounts to the beneficiaries at the end of the administration and for that purpose must ensure that when effecting payments in cash or distributing movable properties like personal effects the Executor must obtain acknowledgment of receipt in writing from the beneficiary. This need not necessarily be complied with in respect of the properties where there are documentary evidence such as land title or car registration certificate.
ix) once all the properties in the estate have been distributed then the Executor must draw up proper account showing due administration and ensure perusal and approval of the same by the beneficiaries.
The Executor must act in the best interest of all the beneficiaries without favouring one over the other. The task must be carried it out in the most impartial of manner as failure to do so might invite a legal suit from disgruntled beneficiaries.
None of the above is to be taken as professional legal advice and the reader should consult a lawyer or as professional will writer to ensure compliance with all the statutory requirements.
The views expressed are those of the writer and do not necessarily reflect those of My Ipoh.
Image Source:Scott Graham