“If you want to provide
your best for your loved ones after you pass away, a will is a most necessary
document. if
you need insurance, you also need a will.” Your
Laziness should not cause inconvenience to your loved ones.
we are too busy slogging and switching jobs for
fatter pay cheques. We spend all of our time planning real estate purchases and creating wealth through stocks and gold. Isn't all of
these efforts partly aimed at leaving behind a rich legacy for our loved ones ?
What is Will :
A will in India is a legal
document that states what will happen to your property once you pass away.
Thinking about drafting a will is not the most enjoyable subject. However, it
is a crucial one. Without a will, there can be serious legal and administrative
problems in dealing with your estate when you pass away – not to mention that a
will can ensure that your assets are amicably distributed in the way in which
you desire.
Will is a legal declaration of the intention of
a testator with respect to his property, which he desires to be carried into
effect after his death. It includes codicil and every writing making a
voluntary posthumous disposition of property. It is testamentary instrument by
which a person makes disposition of his property to take effect after his
death, and which, in its own nature, is ambulatory and revocable during his
life. Thus, a Will can be changed by the executants as and when he so likes. It
is a secret and confidential document which the executants is never ordered to
produce.
When there is no Will :
A succession certificate is required when a person dies
without writing a will.
When a
person dies without having made a Will, he is said to have died intestate. His
property is then inherited by his legal heirs in accordance with the law of
inheritance applicable to him.
It must be
noted here that legal heirs generally include close family members such as
one’s spouse, children, parents, brothers and sisters.
"If a person dies without a will, the law of succession
applies based on the religion of the deceased. Since laws of marriage and
succession are the most intricate among the religious laws, inheritance issues
in India are very complicated. In case of more than one heir, distribution of
assets can lead to family disputes”
The law also doesn't know that you wanted to leave your art
collection for your daughter who has interest in paintings
Would you want your prized car and art collection to be sold
and the proceeds distributed among your heirs according to the succession laws
and not as per your wishes?
Whether it's a son drawing a huge amount as salary or a
daughter who is still pursuing her studies, both of them get a fixed portion of
your wealth when the laws of succession come into play. A will offers you the
option to give more to your daughter if she needs support.
The
property of a Hindu male dying without a will is given to nearest heirs who are
categorised as Class I heirs in the Hindu Succession Act. These include sons,
daughters, widow and mother, among others. If there is no nearest heir, the
property is given to heirs in the next line, which includes father,
grandfather, grandmother, uncles and aunts, among others.
For
example, if a man is survived by his wife and parents, his mother and spouse
will share his property equally. The father does not have any right in this
situation. If the man has a son and a daughter as well, the property gets
divided into four equal parts.
The widow
succeeds to the property in equal share along with the sons and daughters of
her deceased husband. If she remarries, she does not succeed to the estate of
her former husband,
Children born out of wedlock do
not succeed to the estate of the deceased. Live-in partners also do not have a
right to succeed to the estate of the partner.
Unlike Hindu men who have only partial rights to inherited properties, women
have complete ownership of all properties. They can dispose of all of their
property through a will. Property of a Hindu woman dying without a will is
succeeded by her children, children of her pre-deceased children.
In case of Muslims, the succession is governed by religious inheritance laws,
which are different for different sects. The shares of the heirs can vary in
different circumstances. Under Islamic laws of inheritance under, a son
normally gets twice the share of a daughter.
Why will when there is Nominee :
Most financial
instruments, including bank savings accounts, provident fund accounts and
insurance policies, have the option of having a nominee. Having your spouse or
other family member as the nominee will facilitate the transfer of the assets
to your family without the need for a succession certificate. However, a nominee is not the owner of the
asset but its caretaker. The person takes the assets in his custody and
then transfers it to the legal heirs of the original owner.
Alternate of the Will:
Another option
for avoiding any obstruction in the flow of money is to have co-owners for assets
and financial accounts. In case of a bank account, you can open an account
along with a family member which allows either of the survivors to operate it.
You can also make investments such as savings certificates and mutual funds
jointly with a trusted member.
Essential characteristics of a Will:
There are
two essential characteristics of a Will:-
(i) It
must be intended to come into effect after the death of the testator; and
(ii) It
must be revocable by the testator at any time. Although Wills are usually made
for disposing property, they can also be made for appointing executors, for
creating trusts and for appointing testamentary guardians of minor children. In
one case, the Andhra Pradesh High Court has held that contents of the Will must
indicate that it is intended to come into effect after death of testator and
that it is revocable at any time prior to his death and a document cannot be
treated as a Will by a mere reading of heading of it.
A gift to
take effect the life lime of the donor is a deed of settlement and not a Will.
Section 63 of the Indian Succession Act, 1925 provides that a Will is liable to
be revoked or altered by the maker of it at any time when he is competent to
dispose of his property by Will.
What are the
requirements of a will in India?
Generally, an Indian will
should contain the following:
- identification information (full names and addresses) of yourself,
- two witnesses,
- the executor,
- all beneficiaries.
As well it should contain
information about paying off any debts and taxes and identifying all of your
assets. The will should set out who the beneficiaries are, and what they are
entitled to. In addition, the will should explain how any outstanding debts
will be paid. If you have minor children, your will should appoint a Guardian
to look after them. The will must be signed and dated. The will can be in any
language, and need not use formal legal terms. It is also a good idea to register
your will to prevent fraud or tampering.
Types of Will:
Unprivileged Will
A will written by any individual other than a soldier, a sailor or an airman
engaged in a war or on an expedition, is an unprivileged will. These wills need
to be signed by the testator (the person making the will) in the presence of at
least two witnesses who also sign the will. These wills can be revoked by
writing a new will or destroying the old one.
Privileged Will
If a soldier, sailor or airman is in the battlefield or engaged in an
expedition, he may make a privileged will. If the person writes the entire will
with his own hands, it does not need to be signed by any witness. These wills
can also be written by another person. Such wills can be revoked by an
unprivileged will.
Conditional Will
An individual can attach certain conditions to his will. For example, one can
write a will which will come into force if the person dies during a particular
period. One can also leave a property for a person subject to fulfilment of
certain condition such as marriage and attaining certain age. However, if one
writes a will with illegal or immoral condition, it is not considered a valid
one.
Joint Will
A joint will is written by two or more persons together who dispose of their
property as a team. Such wills come into effect after the death of all the
testators. Any of the testators can revoke the will during his lifetime even
after the death of the other.
Mutual Will
Two individuals can write a mutual will giving their wealth to the other in
case of their death. For example, a couple can write a mutual will which makes
the survivor the sole owner of their wealth.
Concurrent Will
Ideally, one person should leave only one will. For the sake of convenience,
individuals who have properties in more than one country execute separate wills
for properties in different nations.
Sham Will
If a person writes a will and completes all the formalities only for some
hidden objective, it is considered void. However, one needs to prove the
intent.
What can be willed ?
The succession
of property is governed by complex laws of inheritance and religion as well as
customs. The laws also differ for men and women. A Hindu (which also includes
Jains, Buddhists and Sikhs) man can write a will for any property earned and
owned by him.
However, a
person cannot include those assets which are not legally transferable in his
testament. "For an inherited property, a Hindu man can only
distribute his share in the property
through a will”
Let's assume
that a person has Rs 1 lakh in cash earned by him and Rs 5 lakh inherited from
his father. He is free to give only the Rs 1 lakh at his will. If he has four
legal heirs, the Rs 5 lakh will have five claimants (one being the person
himself). So his share in the inherited money is only Rs 1 lakh. He can give
his share in the inherited asset to anyone he wants.
In contrast, a Hindu woman has absolute
ownership of all earned as well as inherited property. She can write a will for
her entire property.
The Muslim law allows an individual with heirs
to distribute only one-third of his wealth through a will. The rest two-thirds
of the wealth is inherited according to the religious laws. The limitation does
not apply if the heirs give their consent.
In case of a
leased property, only the rights for the remaining period of the lease can be
passed on through a will. What if a
person inherits properties in other countries? Both Indian as well as foreign
assets can be passed on in a will.Inheritance of overseas assets is
specifically permitted under the Foreign Exchange Management Act. However, you
need to check the foreign exchange regulations in the overseas jurisdiction to
confirm whether any specific approvals are required for the transfer. Most
countries have no such restrictions,
When to Write a Will
You should create a will early in your life .An
assumption that you need to write a will only if you are sick or old is as
correct as the assumption that people die only of old age.. There is no right or wrong age to
write a will. As soon as an individual believes that he/she has specific
thoughts on how the estate is to be dealt with which is different from
prevailing succession laws, they should consider a will
Format of Will:
There is no fixed format for a will. You don't
even need a lawyer to draft it. Just write your will on plain paper or even a
leaf from your journal. However, it will be considered valid only
when it has your signature or thumb impression and has signatures of two
witnesses certifying that it is your will. The law does require the will to
have been made when you are sane and free from any duress or undue influence.
Of course, a minor cannot dispose of his property through a will.
·
Write your will on good quality thick white paper so it doesn’t
get spoiled over a period of time. It should be stored in a plastic envelope in
full size, without folds.
- The
value of assets often fluctuates, so it is better to mention how much each
beneficiary will receive, in percentage terms rather than absolute
numbers. Unless it is pure cash.
- “Do-it-yourself” wills often do not contain all the necessary components as required by law and many times ruled as invalid by courts (for example no signatures from witness or no witness at all). Many a time, it can happen that while creating the will, you use such ambiguous language that it results in lengthy legal battles (“My House should go to sita.” Now if both mother and wife are called sita, which sita ought to get it?. Anyone who might benefit from the ambiguity of the will can jump in to claim a share!
- In
case of Hindus, it should be clearly stated if the property is inherited
or not, because it makes a huge difference, as no ancestral property can
be assigned to any person through a will. All rights on inherited property
are acquired by birth. So if you inherited a property from your Father,
you cannot say in a will, that you want to assign it to person X only! It
will go to all your legal heirs as it is “Inherited”
- A will must always be dated and if more than one will is made, the one with the latest date will nullify all the previous ones. In fact, there should be a statement in your will, nullifying all other previous wills. The pages should be numbered to avoid fraud.
Books for Will:-
Legal Words You Should Know: Over 1,000 Essential Terms to Understand Contracts, Wills, and the Legal System
Guidance On Creating Your Own Will & Power of Attorney: Legal Self Help Guide
Pro Estate and Business Succession Planning: A Legal Guide to Wealth Transfer
American Bar Association Guide to Wills and Estates, Fourth Edition: An Interactive Guide to Preparing
Your Wills, Estates, Trusts, and Taxes (American Bar Association Guide to Wills & Estates)
How to Write Your Own Living Will (Legal Survival Guides)
Indian will Updation:-
You should update your
will whenever circumstances change. This normally includes important family
changes such as the birth or death of a family member. By updating your will in
India, you are ensuring that your will truly reflects what you want, and will
not harm the important people in your life.
Minor changes in the will can be made through a
supplementary statement, known as a codicil in legalese. It is executed in the
same way as a will. If you need to make some major changes in your will, create
a new one.
If you haven't got your will registered,
destroying the old one and writing a fresh will is all that you need to do to
revise it. Make sure that the will clearly mentions the date of creation. The
last will supersedes all earlier ones.
Safety of the Will
- Registration
“Getting your will registered is one way of
ensuring its safety. It will also make it easy to prove that the will is
genuine.”
A registered
will is kept in safe custody of the registrar and cannot ordinarily be tampered
with, destroyed, lost or stolen. For better safety of your will, you can also
keep a copy of your will with the main beneficiary or the executor.
For getting a
will registered, you will have to visit the registrar's office along with your
witnesses. A will can also be registered by the executor or any beneficiary
after the testator's demise. There is no stamp duty for registration of a will.
However,
getting a will registered means that changing or cancelling it will require a
time-consuming process. Any subsequent testament will also have to be
registered.
- Soundness Certificate from Doctor
As the law
mandates that only a mentally sound person can write a will, you can attach a
certificate from a doctor saying that you were in good health and sound mind
while making the will. You can get the doctor to sign your will as a witness.
- Strong Witness
Though anyone,
including a beneficiary, can be witness to your will, it is advisable to get
some trusted person having no interest in the will sign it,.
- If possible, have the two witnesses be a doctor and a lawyer. A doctor signing a will, won’t raise any question of you, being of unsound mind. The lawyer, will vet the will and make sure you dont make stupid mistakes at the time of writing and signing it
- Make sure the witnesses are younger than you and not very old as your will might be in effect for several years! And you want them to be present in this world
- Thumb Impression
If you fear that someone can challenge the
genuineness of your testament, you should also affix your thumb impression on
the last page.
Claim based on will
In case of a dispute, your family members have
to produce the proof about their relationship with and also have to go
helter-skelter to lawyers and spent money and energy.
Making a will is a simple process which doesn't
require any help from lawyers or visits to any government office or court, but
the same is not true for the beneficiaries. "When a
person leaves behind a will, the beneficiaries or the executor need to get a
court order, or probate, verifying the genuineness of the will.”
A fixed percentage of the total value of the
assets is charged as court fee for obtaining a probate, which differs from
state to state. Once an application for a probate is accepted, the court issues
a notice in newspapers inviting objections to the inheritance claims. Once the
application is disposed of, the court issues a probate. However, a probate is
not required for immovable properties of Hindus, except when it is located in
West Bengal, Mumbai and Chennai.
Further please note especially in case of land
or house property, the society will not transfer the flat without a probate and
tax paid certificate. Many times, a prospective buyer will not buy a flat or
land, if the holding is not clear and if the property had not been cleanly
transferred and if there are disputes between nominees and legal heirs.
Flat may still stay in the dead person’s name till their heirs and
nominees settle their disputes. Till then, the flat may be used by Nominees or
any other person. But Society will not transfer the flat to prospective buyer
till the process of probate is settled first. Hence such property cannot be
sold easily. Please proceed with great care in this matter.
Much better then, to gift them some time of
yours, and creating a will
Inform Family members:
when the online investment platform is becoming
more popular and all our bills and receipts are delivered in our email account,
it might not be possible for the survivors to know about all the investments of
a deceased. As several banks are moving away from passbook-based savings
accounts to Internet updates, some accounts may remain undiscovered. Indian banks have around
Rs 1,350 crore in more than 1 lakh dormant accounts, of which 75% are savings
accounts, the Reserve Bank of India has said in March 2011.
Don't forget to keep your
spouse or other family members updated about your assets and liabilities. If
you don't want to disclose it right away, keep a record at a safe place and let
your family know where to look for it in case of any eventuality.
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