People spend hours thinking about who gets what in their Will and almost no time on who will actually carry out those instructions. The executor is the single most important practical decision in any Will. A wrong choice can hold up an estate for years.
When most people think about a Will, they think about beneficiaries. They worry about what each child will get, whether the spouse is provided for, whether the family business is fairly divided. The executor is treated as an afterthought — a name to fill in on the second page, often the eldest son or the most reliable nephew.
This is a serious mistake. The executor is the person who turns a Will from a piece of paper into a series of bank transfers, property mutations, and final settlements. They deal with the registrar of probate, the income tax department, the property registrar, three or four banks, two or three mutual fund houses, possibly an insurance company or three. They negotiate with creditors. They sometimes negotiate with each other, if there is more than one. They do this while themselves grieving.
If you choose the wrong executor — someone who is honest but inattentive, or attentive but estranged from the family, or capable but living overseas — you can hold up the estate for years. This article is about how to think about that decision properly, and what an executor actually has to do once they accept the role.
Under Indian law, the executor is the person named in a Will to whom the testator has entrusted the execution of the Will after their death. Under the Indian Succession Act, 1925, the executor's title to act flows from the Will itself — but in many cases is given practical force only when probate is granted by the court.
The executor steps into the shoes of the deceased for the limited purpose of administering the estate. They become the legal representative of the deceased for filing tax returns for the year of death, for receiving and discharging debts, for collecting assets, and for distributing the residue to the beneficiaries as directed by the Will.
Critically, the executor is a fiduciary. They hold the assets of the estate not for themselves but for the beneficiaries. They cannot use estate funds personally. They cannot prefer one beneficiary over another. They cannot delay distribution to suit their convenience. They are subject to a duty of care, a duty of loyalty, and a duty of impartiality.
Almost anyone of full age and sound mind can be an executor. There is no requirement that they be a lawyer, an accountant, or any kind of professional. Family members, friends, professional advisors, trust companies, and banks all serve as executors in different combinations.
Indian law also permits multiple executors. A common pattern in our practice is to name two executors — typically a senior family member who has the trust of the household, plus a professional (usually a lawyer or CA) who handles the technical aspects.
Minors cannot be executors. A person who is mentally incapable cannot act as an executor. A person who refuses to accept the role cannot be forced to do so — they simply renounce and the alternate (if named) takes over, or the court appoints an administrator.
Before you name anyone as your executor, please ask them whether they are willing to serve. This sounds trivial. It is not. Many otherwise excellent Wills have been undermined by executors who, when the moment came, were unwilling or unable to perform the role.
A common scenario: the testator names her eldest son, who lives in Bengaluru, as executor. She dies. The eldest son is genuinely willing but is in the middle of a business launch and physically cannot dedicate the months needed to wind up the estate. He renounces. Now the family has to scramble for an administrator, the process slows down by six months, and the goodwill in the family takes a hit.
The fix is straightforward: have the conversation in advance. Ask the prospective executor: 'Are you willing to serve?' If yes, also ask: 'Do you have any concerns about the role?' Their answers will often guide you to a better choice.
On the death of the testator, the executor's first duty is to take custody of the original Will and lodge it (or a certified copy) safely. Without the original or a certified copy, no probate can be obtained.
Next: arrange the funeral and pay funeral expenses out of the estate. Reasonable funeral expenses are a first charge on the estate, ahead of any beneficiary's claim.
Then begins the substantive work: making an inventory of all assets, ascertaining all debts, applying for probate where required (mandatory in Mumbai, Kolkata, Chennai jurisdictions for Christian and Parsi Wills), filing the deceased's income tax return for the year of death, collecting bank balances and mutual fund holdings, dealing with mutation of immovable property, distributing specific bequests, and finally distributing the residue.
Throughout this process, the executor must maintain accounts and be ready to render them to the beneficiaries or to the court if called upon. They must be impartial as between beneficiaries — preferring one over another exposes them to personal liability.
Probate is a court order — issued by a court of competent jurisdiction — that establishes the validity of the Will and the authority of the executor to act under it. It is the executor's formal title-document.
Probate is mandatory for Wills by Hindus, Christians, and Parsis in the territorial limits of the High Courts of Mumbai, Kolkata, and Chennai, and in respect of immovable property situated there. Elsewhere, probate is optional but often advisable, particularly for substantial estates or where there is any prospect of dispute.
Obtaining probate requires filing a petition, serving notice on the legal heirs, dealing with any objections, paying court fees calculated on the value of the estate, and obtaining the grant. The process can take anywhere from a few months (uncontested) to several years (contested). The executor's role for this phase is broadly that of a litigant.
Under Indian law, an executor is entitled to reasonable compensation for their services. The Will itself may specify the compensation (a flat fee or a percentage of the estate); in the absence of such specification, the court can fix reasonable remuneration.
Family-member executors often serve without remuneration. Professional executors (lawyers, CAs, trust companies) typically charge a percentage — 1% to 3% of the gross estate is common in the Indian market, with sliding scales for larger estates.
A common drafting practice we recommend: have the Will state that the executor is entitled to such reasonable remuneration as may be agreed with the beneficiaries, failing which as determined by the court. This avoids both under-compensation (which causes the executor to disengage) and disputes.
Executors can be removed by the court for cause. The grounds include: neglect of duty, conversion of estate assets to personal use, conflict of interest, persistent failure to render accounts, mental incapacity, and conviction of a serious offence.
The procedure is by application to the court that granted probate. The beneficiaries — or any of them — have standing. The application sets out the facts justifying removal and asks the court to revoke the grant and appoint a replacement administrator.
Removal applications are not rare. They are also not cheap or quick. The best protection against having to remove an executor is to choose carefully in the first place.
Pick someone honest. The executor will handle large sums of money. Pick someone organised. The role involves dozens of moving parts. Pick someone resident in the same legal jurisdiction as the bulk of the estate — an executor who has to fly in for hearings is going to be slower and more expensive.
Pick someone with the temperament for it. The executor will encounter family members in distress. They will have to say 'no' to people who feel entitled. They must be able to do this with empathy and firmness.
Consider naming an alternate. Executors fall ill, move away, predecease the testator. An alternate ensures continuity. Consider naming two executors who share the load — usually a family member plus a professional. And do speak to your chosen executor in advance.
We sometimes see Wills where the testator has spent hours on the disposition of assets and has named the executor as an afterthought. We then see those same families come to us two years later, mid-litigation, wanting to remove the executor.
Choose the executor with the same care that you choose your beneficiaries. The Will may say what should happen, but the executor decides when and how it actually happens. In a real sense, they are the single most important person in your estate.
If you are uncertain, professional executor services are available and not particularly expensive relative to the size of most middle-class estates. We are happy to advise on the structure that fits your particular family configuration.
Where multiple executors are appointed, they generally act jointly. Decisions concerning the administration of the estate require the agreement of all executors, unless the Will specifies otherwise.
This can create friction if the co-executors disagree on matters of management, distribution, or interpretation of the Will. The standard mechanism for resolving such disagreements is reference to the court — usually through an application for directions in the probate proceedings.
To minimise friction, Wills appointing multiple executors should provide a clear protocol for decision-making — for example, that decisions can be taken by a majority of the executors, or that one executor (the 'managing executor') has authority over day-to-day matters while major decisions require all signatures.
Where the Will creates testamentary trusts (e.g., assets held in trust for minor children), the executor's role transitions into the trustee's role at some point. The Will should specify when and how this happens.
Typically, the executor completes the administration of the estate — collects assets, pays debts, files final tax returns, distributes specific bequests — and then transfers the trust assets to the named trustees (who may or may not be the same persons as the executors).
Until that handover is complete, the trust property is technically still part of the administration. Income earned during this period is taxable under Section 168 (estate income) rather than at the trust's tax rate. Clear sequencing in the Will avoids ambiguity at the handover point.
Mistake one: delay in obtaining probate. Many executors believe they can quietly distribute small assets without obtaining probate. For Wills involving immovable property in the Mumbai, Kolkata, and Chennai jurisdictions, this is incorrect — bank transfers may go through, but property mutation will not.
Mistake two: distribution before all debts are settled. The executor is personally liable to creditors if they distribute assets to beneficiaries while debts remain unpaid. The order of priority — funeral expenses, debts, specific bequests, residuary distribution — must be respected.
Mistake three: failure to file the deceased's final income tax return. The executor is responsible for filing the return covering the period 1 April to the date of death. Delay attracts penalty and interest, which reduce the estate available for distribution.
Mistake four: poor record-keeping. The executor should maintain a contemporaneous log of all decisions, transactions, and communications. Where the executor is later required to render accounts — to the beneficiaries or to the court — clean records are protective. Memory is not.
Occasionally, the named executor finds themselves disagreeing with the testator's choices — perhaps a bequest seems unfair, or a particular beneficiary is undeserving in the executor's view. The executor's personal opinion is not legally relevant. Their duty is to give effect to the Will as drafted.
If the executor's disagreement is fundamental — strong enough that they cannot in good conscience perform the role — the right course is renunciation. The executor formally renounces the appointment, the alternate (if named) takes over, or the court appoints an administrator.
What the executor must not do is selectively perform their duties — distributing in ways that diverge from the Will, delaying distributions to disfavoured beneficiaries, or interpreting clauses contrary to their plain meaning. Each such act exposes the executor to personal liability and can ground an action for removal.