Understanding the Law
May 31, 2019
Your Executor/s Executrix/es

The word “executor” is used for a male and “executrix” for a female person who is named in a will to act on behalf of the testator (that is the maker of the will) to deal with his earthly goods.

The court could also appoint an executor in some circumstances. In this piece the word executor is used to refer to both male and female for convenience, as it is on many occasions used for both sexes. Another person who is named in the will is the trustee. The executor is in charge of the will, while the trustee is in charge of any trust you may form under your will. Your trustee could be your executor/executrix or any other person you choose.

You would have to make an important decision when you choose someone to perform for you after your death. This person is supposed to carry out your wishes. You have to give it some deep thought, as you want to have the right person/s to act on your behalf. For some people it might be some sleepless nights, especially where there are many beneficiaries and there is a large estate.

Your executor would be responsible to collect the asset of your estate, prepare an inventory, obtain death certificate, pay valid claims against the estate, represent the estate against the claims of others, secure a lawyer to get the documents through the probate court and swear to the oath for a grant of probate. A company or trust corporation or solicitor could also be appointed executor.

The process by which the will is dealt with by the Court is known as proving the will.

After the grant is obtained the executor distributes your estate to the beneficiaries. That person would do so by providing the beneficiaries in the case of real property, deeds of assent. The testators most often would provide in the will for the expenses of the estate to be paid. This will include the filing fees, attorney’s fee and other expenses, but where no ready cash is available the beneficiaries would have to pay. The person who you choose should therefore be an able bodied person who is trustworthy and responsible.

You can be polite and do the right thing by asking the person you want to be the executor/s of your will to perform for you. You do not want to spring a surprise when he or she discovers after your death that he or she is your executor. A named executor could refuse to act in that capacity. We say that he or she has renounced probate. Many persons would ask trusted relatives and friends and would discuss the distribution with that person. It is best to choose someone who would get along with your beneficiaries and not cause more confusion.

You may appoint one (sole) or more executors as you wish. One or more could act as general executor (over the whole estate) or a limited executor (over a part of the estate). All your appointees do not have to prove the will. One person could do so and power could be reserved to the others. For a minor, however, the law requires that you appoint two persons as executors. You can choose one of your beneficiaries to be your executor without any adverse effect to that person. A beneficiary/executor can inherit. An executor has an important duty and must be above reproof.

Ada Johnson is a solicitor and barrister-at-law. E-mail address is: [email protected]