It is not compulsory to appoint an executor to the Will

Where the testator has not appointed an executor, an administrator, through the grant of letters of administration by a competent court, may be appointed to administer the estate of the testator


iStockPhoto
iStockPhoto

While dividing ancestral property, do we need to keep an equal share for parents also or is the property to be equally divided only among the children?

—Kavish Nair

We have assumed for the purpose of our response that the querist is a Hindu governed by Mitakshara law and, accordingly, the Hindu Mitakshara Law would apply. We have also assumed that the querist is part of a Hindu Undivided Family (HUF) that comprises his parents and siblings and that you are referring to a division of the HUF’s property.

Under Hindu Law, HUF property is distinct from self-acquired property of an individual and is governed by the two schools of Hindu Law: Mitakshara and Dayabhaga.

Under Hindu Law, every coparcener is entitled to demand partition and/or get a share in the HUF when partition is effected (and after the 2005 amendment to the Hindu Succession Act, 1956, daughters of a coparcener are also included as coparceners and are entitled to a share on partition).

Wives are members of the HUF but are not coparceners and, hence, are not entitled to seek partition but are entitled to a share in case partition takes place between the husband and sons (and now also daughters).

In the case mentioned in the query, the father and each of the children (including daughters, after the 2005 amendment) would be the coparceners of the HUF. Therefore, if the HUF (ancestral) property is proposed to be partitioned, then, on partition all the coparceners, and in this case your mother, as a member, would be entitled to a share in the HUF property.

However, a coparcener can always opt not to receive her share and allocate the same to another coparcener.

If the ancestral property is not an HUF property (but a property that you have inherited from any ancestor who had self-acquired the property) and it has been vested in you absolutely, you may deal with the property vested in you as you deem fit. You can do this during your lifetime or through your Will. You do not need to keep any share for your parents or for any other person.

Is it compulsory to appoint an executor for a Will? If I do not want to appoint any one as an executor, then how will my Will be executed? Can the beneficiaries themselves do this?

—Anindita Sahay

While it would be advisable to appoint an executor under a Will, it is not compulsory under the Indian Succession Act, 1925, to appoint one.

Where the testator has not appointed an executor, an administrator, through the grant of letters of administration by a competent court, may be appointed to administer the estate of the testator. It is only upon obtaining the grant of letters of administration that an administrator can give a valid discharge and undertake all acts for the administration of the estate.

However, except in cases which require a probate or letters of administration, as the case may be, to be obtained, or in cases where the legal rights of the legatees have been challenged, the legatees may themselves administer the estate of the testator (without an executor or administrator being specifically appointed).

Queries and views at mintmoney@livemint.com

READ MORE