Understanding the Law
April 24, 2009
Your Executor / Executrix – Part 2

Last week we looked at the executor and we noted some of his duties. We also looked at some of the persons who could assume the role of executor. An infant may be appointed an executor, but a grant of probate cannot be made to him during the period of his minority. If he is one of several other persons named as executors then the others can probate the will. If there is no other person named, then his guardian could be given a grant of letters of administration with the will annexed.{{more}} A person of unsound mind cannot be an executor.

Your executor is bound to satisfy all just claims against your estate before distributing it among your beneficiaries.

An executor is not entitled to any remuneration for his own personal trouble or loss of time, unless it is expressed in the will.

If your executor dies before the estate is completely administered, then the person who he appoints executor by his will becomes the executor for your will. If he did not appoint an executor, then it must be done by one of the beneficiaries taking out letters of administration de bonis non.

Executor de son tort

If a person without any just authority takes upon himself to act as executor or administrator he will be intermeddling with the goods of the deceased and is liable to the extent of the goods which he has interfered with. He is only allowed to do acts of humanity or necessity to protect certain assets for the beneficiary. Actions could be brought against him by the rightful executor or administrator.

Difference between an Executor and an Administrator

The Executor is named in the will. If you do not have a will, the person who represents you will be your administrator and he operates according to the law. It stipulates an order of priority. A surviving spouse takes top priority. If your spouse renounces administration or there is no spouse then a son or daughter may apply for a grant of letters of administration.

A trustee

You can appoint your executor or any other person to be your trustee. It would become necessary to appoint a trustee if you have property to be administered. A trustee is a person who holds the property for the benefit of your beneficiary. The beneficiary under a trust is otherwise known as the cestui que trust. The powers of the trustee are contained in the instrument creating the trust. There are two kinds of trustees – active and passive. The active trustee performs in an administrative capacity, with duties such as managing the trust, receiving income, and paying over to the beneficiary. A passive trustee is one in which property is vested for the benefit of another and he is required to hold it in the meantime until the beneficiary can deal with it.

It must be noted that a trust may be created inter vivos, that is during the life time of the owner for his own benefit. A trust could arise through the operation of the law.

Ada Johnson is a solicitor and barrister-at-law.
E-mail address is: exploringthelaw@yahoo.com