It is a
common problem as to who should be given the custody of the Will so that
someone may take the required action to handle and distribute the estate to the
beneficiaries. There are several cases where Will is found in lockers and a
great deal of time is lost in even locating the Will upon the demise of the
person. Professional Executor can keep the custody of the Will and
take the desired actions at the right time.
NSDL has started creating the E will for those who desire to have it in digital mode.
What is a Will?
A Will is a document, considered as a legal declaration of the
intention of a Testator about
the distribution / disposal of his possessions / assets / properties etc. after
his death. The Will would specifically have details of all considerations that
the Testator has in mind,
to carry out his wish in this regard, after his death.
[Testator: A person who makes and executes a Will is called the Testator].
Who can write a Will?
- A
person who has assets and desire those assets to be inherited by certain
specific persons, can write a Will;
- He/She
should be a Major i.e. 18 years of age or more;
- Should
have a sound disposing mind &
- Should
not otherwise be debarred from making a Will by any competent authority.
Why should anyone write a Will?
- A
Will is the best way for you to ensure the distribution of your assets to
the beneficiaries, whom you desire the assets to be given, including the
extent thereof.
- It
is not about the value of assets you have, it is to ensure that your
assets are passed on to your next generation /beneficiaries hassle free.
- A
Will can also be used to appoint a guardian to look after children until
they attain maturity or age of 18 years. In case the child / children
is/are mentally unstable, the guardian needs to be appointed even if the
child / children is / are above 18 years of age.
- A
Will also allows you to choose a person to manage the distribution of your
assets. This person is called the Executor.
[Executor A person, who is appointed to look after, administrate and
distribute the assets of the Testator, upon his demise, is called an Executor.]
- A
Will eliminates /reduces the intervention of judicial process /third party
intervention for the distribution of the assets upon the demise of
the Testator.
What if one dies without making a Will?
If one dies without making a Will, then he is called as have
died ‘Intestate’. In this case his estate will be distributed amongst the
family members as per the personal/state law of the deceased intestate. In this
process, all the legal heirs may get a share in the assets of the deceased,
without any regard to the real intentions of the deceased about including or
excluding any of the family members or friends. A Will obstructs the natural
flow of succession so that assets are inherited as per the wishes of the person
(Testator).
What are the characteristics of a Will and
its requirements?
The Will document should have:
- All
necessary identifiers of the Testator should
be mentioned in the Will. This includes but not limited to Name, Age,
Religion, Address etc.
- A
declaration made by Testator to
the effect that the present Will is his/her last Will and all other
earlier Wills and Codicils are
hereby revoked.
- Clear
information about who are the beneficiaries and what is their relationship
with the Testator as
well as what assets will be given in what proportion to which beneficiary.
[Beneficiary: A person, who is entitled to the
asset under a “Will” is called a beneficiary. Any person can be a beneficiary,
including a Charitable organization or even a public or a private Trust.]
- Specific
special clauses which will make a specific beneficiary eligible
or non-eligible to inherit the share of the assets of the person (Testator) and
conditions, qualifications for the same.
- Mention
about the Will to take effect after the death of the Testator and if
necessary, also mention about who will be responsible for the execution of
the Will (Executor’s name).
- A
Will must be attested by minimum two persons as witnesses who shall put
their signatures in presence of the Testator and
the Testator should
sign the Will in the presence of the witnesses. Beneficiaries cannot be
the witness.
In addition to the above,
- Will
can be modified or altered at any time and any number of times by
the Testator during
his life time.
- Will
is revocable during the lifetime of the Testator. As long as
a Testator is
living, he may, at any moment, cancel his Will and make a totally
different disposition of his properties.
- Testator is the
person who declares his wish in the Will regarding the disposal of his
properties after his / her demise.
- Executor/s is/are
appointed by the Testator,
to ensure that the assets are distributed as desired by him/her in the
Will. (Optional)
- beneficiary/ies is/are
the person/s to whom the benefits are passed through the Will.
- Witnesses
– 02 (Two)
All movable as well as immovable assets including Real Estate,
Fixed Deposits, Money in Bank Account(s) Securities, Bonds, proceedings of
Insurance Policies, Retirement benefits, Art, precious metals (Gold, Silver
etc.), Brands, Goodwill, digital assets (photographs, sketches, blogs,
websites, email accounts such as gmail, yahoo etc. and with social websites
such as Facebook, Twitter etc.) and Intellectual Property Rights etc. including
what they are and the method and manner of their storage, can be covered under
the Will. In short, any assets that the Testator has in his
ownership, at the time of his death can be included and distributed as per the
desire of the person.
All the Testator’s loved ones who may include the Testator’s
spouse, children, step-children, parents, grandparents, grandchildren, friends,
relatives and/or any institution like School/s, Temple/s, Community Trust/s,
Charitable Trust/s, etc. to whom the Testator wishes to
pass on any benefit can be included as thebeneficiary/ies in
the Will document.
Only to the extent of your share in the joint holding of the
assets with any other person can be distributed by you in your Will.
Unless a Will is signed, it is not a legally valid document. A
Will Document which is not signed is as good as no Will at all.
A Nominee is a Trustee (or custodian) as per law. Nominee is
entitled to receive the assets of the deceased. While in case of securities,
the property vests in the Nominee in terms of the provisions of the Companies
Act, in case of other assets the Nominee may or may not be the Beneficiary. To avoid
disputes, it is advisable to write a Will in order to make a comprehensive note
of all the assets as well as providing a clear indication about allocation of
assets to the beneficiaries. It reduces the hassle of paper work for
beneficiaries / legal heirs and avoids the instance of any future dispute over
the assets. It is also advisable to make nomination of securities in accordance
with the Will document. Both, Nomination and Will are very important. Transfer
of assets to the Nominee gives discharge to the creditor / custodian. For e.g.:
in the case of a Bank where it is the creditor/custodian of fixed deposits made
by the Testator,
upon release of the FD to the Nominee the Bank shall stand discharged.
One can bequeath the assets upon his demise to a private or a
charitable Trust under the Will. A Trust goes into action and commissions its
activities upon the demise of a person. A Trust can be set up for the benefit
of family members or such persons who the Testator desires to
include as the beneficiaries. This is considered as a good way to address
succession related issues on long term basis for the next generation.
One can exclude his immediate family members from being
the beneficiary/ies in
the self- acquired assets. However, in case of inherited asset/s, the rights of
the family members who are legal heirs shall prevail and the Testator has to abide
by the law dictating such rights.
Contingent beneficiary/ies is
an individual/entity who will receive the share in the estate if the
primary beneficiary/ies does
not survive the Testator.
If contingent beneficiaries are not defined, the share of deceased
primary beneficiary/ies will
be distributed as per personal/State laws.
Witness to the Will can be anyone who is/are above 18 years of
age and of sound mind and capable to enter into a Contract. It is recommended
that thebeneficiary/ies should
not be the witness to the Will.
[Witness: Witness is the person(s) in whose
presence the Testator signs
or affixes his mark on the Will and the said person(s) affixes his/her sign /
mark on the Will.]
There should be minimum 02 (Two) witnesses to the Will.
No. However, it is advised that you attach a fitness certificate
from your family doctor along with the Will attesting the soundness of mind.
No; the Will can be written on plain paper of any convenient
size. It is also not necessary that Will has to be written on legal size paper.
In addition, the Will can be hand written and is not necessary to be in typed
form. However, for clear legibility and avoid any ambiguity arising due to hand
writing, typing in a font size which is naturally readable, is recommended.
Where you think
that the Will written by you is likely to be challenged by any person,
the Testator may like to
exercise the following additional precautions:
- A
Will should be prepared through a trusted Advisor.
- The
Will is witnessed by 2 (two) witnesses as per law.
- The
choice of the witnesses should be good and credible.
- Process
of the writing, executing and witnessing the Will is duly video graphed. A
video recording of the Will is admissible by way of evidence.
- The
Will may be registered with the Sub-Registrar of Assurances.
What is the legal status of the nominee under the
law?
[Succession Certificate
An Order issued by an Hon’ble Court
certifying the person(s) entitled to the estate of a deceased person and extent
thereof.]
[Probate It is a process to establish that a
“Will” is valid. It is understood as an order given by the Hon’ble Court,
certifying the “Will” as valid.]
As an
exception to the above, the nominee of the Shares shall, upon demise of the
original owner, have complete rights to own the Shares in his own name to the
exclusion of all, including the beneficiary named
for those Shares under a Will.
The Testator should
not bequeath/mention any ancestral property/assets not owned by him, unless
such property or a share in such property has devolved upon him/ come to his
possession legally by following due process of law.
No, Testator cannot
bequeath/mention the details of the Immovable properties (assets) held outside
India. The properties held and owned outside India are governed by the laws of
that country where the property is situated and hence, it is advisable to
prepare a separate Will for the assets held outside India in accordance with
the laws applicable in that country.
Who can be appointed as an Executor to a Will?
Anyone
who is /are above 18 years of age and of sound mind and capable to enter into a
Contract, can be appointed as an Executor/s to
the Will. One can appoint multiple Executors, one as a primary executor and
others as alternate executors.
What are the Advantages of appointing WARMOND TRUSTEES AND EXECUTORS
PRIVATE LIMITED as an Executor?
Can WARMOND TRUSTEES AND
EXECUTORS PRIVATE LIMITED act as the Executor as well as assist to prepare
Will?
- Act
as an Executor
- Keeping
safe custody of the Will
- Identifying
assets of the deceased
- Applying
for and obtaining the Probate, Letters of Administration
- Act
as a Trustee
- Paying
debt, duties and expenses
- Assist
in preparing tax returns
- Assist
in protecting business interests
- Collecting
any monies due
Is it mandatory to register the Will? What is the
stamp duty payable on Registration of the Will?
What should I do if I want to ask a
question which does not show above?
If you don't find your answer here, please write to us info-ezeewill@nsdl.co.in
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