A 'Will' is a legal document of assertion by which a person making the Will, the testator, allocates the rights to his/her property and/or other possessions to members of his family or his death, effective in the event of his death.
This Act applies to both testate (when a will has been left behind) and intestate deaths (when a will has not been left behind). Section 59 of the Act states that every person of sound mind, other than a minor, may dispose of his property by 'Will'.
Benefits of making a Will
A Will is the simplest way to ensure that your property is amicably distributed in a way that you desire, after you leave this world. It can be made by only an adult of sound mental health and memory. The ownership of the title of the property is transferred in the name of his legal beneficiary after properly categorizing the antecedents.
Your Will is a guarantee that the property that you have built
up in the years can be utilized in a way that you want it to
be. If you don't plan the future of your assets properly, your
heirs can come into a direct disadvantage. If a person dies intestate,
it could lead to severe administrative,
taxation and legal problems and could possibly lead to financial losses.
Features of a Will:
A Will should be in compliance with the Indian Succession Act, 1925. It should give all instructions on distribution of your assets, mention the name of an executor and trustee to oversee the execution of the Will as desired. A Will can be changed as many times as required by the testator.
Probate:
After the death of the testator, the executor comes into action and files a probate, proves his identity and establishes his authenticity. If agreed by the court, the executor locates the beneficiaries and distributes the property and assets as directed. He performs the stated duties and submits the receipts to the court. The following documents are required for probate:
- Original copy of the Will, duly signed by the testator, two witnesses and lawyer.
- A certified copy of the death certificate of the testator.
Legal beneficiaries to a Will
Legal beneficiaries to a Will can be basically categorized as under:
- Category A: The antecedents of a male testator are his mother and immediate family (wife and children). And, if, testator is a married female, then her list of legal heirs include her husband and children.
- Category B: If none of the beneficiaries listed above are alive, then the beneficiaries of a male testator include his brothers, sisters and father. If, testator is a married female, then her list of beneficiaries comprises her parents-in-law, brothers and sisters of his husband, provided that the property has been inherited by her from her in laws. If she had inherited her father's property, then they are the legal beneficiaries. This is applicable if none amongst her husband and children are alive.
- Category C: The third category includes a male's nearest relatives amongst blood relations. The blood relatives of the male are called Agnates and blood relations of female are called Cognates. Legally, a female member shall be last link of chain in this category.
- Category D: In case any of the legal heirs of any person dies before the testator, then his wife and children shall automatically own share in his inherited property. If not, then get ready to search for a lawyer.
Registered and Unregistered Wills:
A Will can be oral or handwritten on a plain paper. A Will should carry signatures by the testator and in presence of two witnesses. It is generally recommended to get the Will registered. A registered Will is easy to find and is secure against fraudsters. It safeguards you against any dispute arising out of allegations of changing the Will. A Will registered and executed in presence of registering authority is known as registered Will.
Will with a verbal statement or a written statement supported by, at least two witnesses of persons of reputation, social status and standing is called an Unregistered Will. Registering a Will is entirely optional but is highly recommended.
Making a Will also involves planning the liabilities towards the government like estate duty, VAT, capital gains tax, income tax et al. An error in a person's Will may inflict irreparable financial damage to your next-of-kin, along with the possibility of inviting legal interference.
Related Laws
- Indian Succession Act, 1925
- Hindu Personal Laws
- Muslim Personal Laws
- Indian Registration Act, 1908