Significance of Will Writing
Every one of us is going to leave this earth some day or the other. We are not talking about outer space missions here. We are talking about death, which is a reality for all of us. As learned and pragmatic individuals, we would surely not want our family to fight over our assets, once our life ends, and a will can be extremely helpful in this regard.
What is a Will?
A will and testament, as it’s known in India, is a written expression of the desire of how you want your wealth to be distributed after your death. Any person above 21 years of age can make a will. You can make it on plain paper and it’s not legally binding to write it on stamp paper. But it’s advisable to write a will in your own handwriting because the same could be required for verification in case of doubts raised by the next of kin or relatives. It may be that according to your preferences, you want to apportion your assets unequally among your successors and relatives, or financially provide for a faithful servant or close friends. This won’t be possible without a will.
In India, however, talking about or discussing a will is often a sensitive and uneasy issue. The reasons are often cultural. We Indians are superstitious and tend to believe that planning or talking about something means the event will take place shortly. Also, If you advice a senior citizen to make his/her will, they will think you are eyeing their property. But the fact is, whether you discuss death or not, it will happen.
Importance of a Will
A will is immensely important and should be on your list of priorities, once you have acquired reasonable wealth and assets. If you have a diverse family structure and want to bequeath your wealth to all or some of your heirs and next of kin, you should prepare a will today, not tomorrow or later. If you die sans a will, your wealth will be distributed according to the Hindu Succession (Amendment) Act, 2005. It’s a common misinterpretation that an estate of a deceased person is automatically transferred to the spouse as children or relatives may claim the property. Succession and inheritance laws are diverse and complicated and are different for Hindus and Muslims.
Moreover, your family members are likely to face much inconvenience, if you don’t make a will. In the case of disputes, they have to produce proof of their relationship with you and spend huge money and time on lawyers and courts. Spare them the trouble and prepare your will on time.
How to make a Will?
There are several parts to a will, which when completed, makes up the complete will. There’s no specified or legal format, but there’s a template which lawyers widely follow, and has been used for centuries. It’s simple, logical, and based on common sense. There are many online platforms like Willsecure and Easywill that helps in making a will.
Here’s how a will is usually written in our country:
Declaration: In the first paragraph of your will, you have to declare that you are writing the will in full sense and not under any coercion. Mention your name, age, address etc. to confirm who you are, in your absolute senses. Many people prefer to start their will with the phrase: “This is the last will and testament of…” irrespective of whether it’s the last will or not. The phrase negates all previous wills, if any, compounded by the person.
Details of assets and documents: The second step will be to provide a list of all your fixed and liquid assets along with their present market value. These include land, house, bank fixed deposits (if not nominated), mutual funds, postal investments, share certificates and similar things. You should also indicate where these papers are stored. In most cases they’ll be stored in your bank locker. Even the will, in fact, must be stored there. Speak to the bank regarding the rules to release the will from the locker after your death. Inform the executor of your will and your family members where you have kept it. We’re sure they must be pretty interested in it.
Details of ownership: You should always name the persons whom you want to own your assets and the proportion thereof, after your death, at the end of the will. This is the actual “will” part of your will. If you want to give a part of your assets to a child, you have to appoint a custodian to manage the assets on behalf of the child, till he/she becomes an adult. A custodian, needless to say, must be a trustworthy individual.
Signing the will: Once you have finished writing the will, you have to sign it, along with the date and place, in the presence of two independent witnesses. The witnesses will sign below your signature affirming that you signed the will in their presence. It’s important that the witnesses are among your friends, colleagues, or neighbours and not direct beneficiaries of the will. They must be young enough to outlive you. Witnesses only certify the signing of the will and are not a party in its making. The envelope of the will should be sealed and bear the date and your signature. Witnesses are not required to sign the envelope.
What can be Willed?
Religion and customs have largely governed succession laws in India for centuries. They also differ among men and women.
A Hindu (including Sikhs, Buddhists, and Jains) man can will any property owned and earned by him. It could be an asset like jewellery, cars, flat, in fact; any right with or without a monetary value. Even liabilities or obligations may be passed along with the assets. However, assets that are not legally transferable, can’t be transferred by a will. For an inherited property, a Hindu man can only bequeath his share through a will.
Hindu women, on the other hand, have full ownership of all inherited and earned property. They have the right to bequeath their entire property.
Muslim law allows a man with successors to will only a third of his wealth. The balance is passed on according to religious laws. But the limitation won’t apply if the deceased’s heirs give their consent.
In the case of leased properties, only the right for the balance period of the lease after a person’s death can be transferred through a will, irrespective of the person’s religion.
Points to remember while making a Will
• If possible, try to get a lawyer and a doctor as your witness. A doctor as a witness won’t raise questions in the future about you being ill or of unsound mind while writing the will. The lawyer can vouch your will and ensure you make no mistakes while writing and signing it.
• Witnesses or their spouse shouldn’t ideally be a beneficiary. This could raise questions of vested interests and may make the will invalid.
• Write the will on good quality paper so that it’s not spoilt over the years. Store it in a full-sized plastic envelope void of folds.
• Keep a copy of the will stored away from your original will, preferably in a bank or home locker. Inform your next of kin about it. Don’t make more copies of the will than required.
• Hindus should clearly mention whether a property has been inherited or not. No ancestral property can be transferred by a will. Rights of all inherited property are acquired by birth. For instance, you can’t pass on a property which you inherited from your father to Mr X. It’ll automatically go to your legal heirs.
The value of assets often fluctuates. It’s advisable to state how much each of the beneficiaries will receive in percentage, rather than in absolute numbers unless it’s liquid cash.
Execution of will in a court
After your death, the executor named in the will, would divide your wealth among the beneficiaries. It’s not legally mandatory to get a will executed in a court of law. But if you wish, the will could be executed before a notary public or a judicial magistrate. Such a provision can be mentioned in the will. This is the procedure followed by most people to avoid any controversy regarding the distribution of wealth.
Probate and its importance
A probate is a copy of the will, certified by the court. The executor of the will has to file a probate seeking permission to distribute the wealth according to the will. Granting a probate in Indian courts often takes six months to a year. Rights as an executor or legatee can’t be established sans a probate. Upon filing a probate, the court usually puts an advertisement in a newspaper to ensure its granting is not contested. The court may call the witnesses of the will to testify and sign relevant papers. Necessary court fees, and taxes depending on the property value have to be deposited. After some affidavits, the probate is ready to be issued. Legal heirs can get the deceased’s property only after the court passes the probate order. While probate requirements vary between states, the procedure is largely the same.
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What if there’s no will?
Distribution of a deceased person’s property could be very difficult if there’s no will. Family members may have to learn from pillar to post trying to get access to the person’s property. But they can still get their dues provided they get some important documents. Here’s what you need:
Succession certificate: This is perhaps the most important document you’ll need to stake claim to a deceased’s property. It also gives authority to a person to represent the deceased for collecting debts and securities. You have to move the high court or a magistrate’s court, along with supporting papers, to get the certificate. For immovable properties, documents like a gift deed may help.
Bank accounts and death certificate: A certified copy of the municipal death certificate is required to access bank accounts with no nomination. The succession rule applies here as well. It’s advisable to register a nominee for bank accounts to avoid hassles in claiming the money of a deceased.
Minor child’s right: If the parents of a child suddenly die without compounding a will, the minor has to move to the court through a guardian to stake claim to the property. While minors can own property, they have no rights to manage it. If none comes forward because of the fiduciary nature of the relationship, the court may appoint a guardian or a special officer to manage the minor’s share of property. If a child inherits a share of his/her parent’s property, the spouse can’t sell, rent, lease out, refinance or mortgage it sans a court order. The court may issue additional orders on how a child’s assets would be invested, till attainment of maturity.
Mutual agreements: The real problem arises when the deceased has too many heirs, each claiming a fair share of the property. The best way out in such cases is to compound a mutual agreement in the presence of a lawyer regarding the distribution of assets. Its provisions should not be biased towards any party. The agreement can then be signed by witnesses and filed before a succession court with an application. It can also be duly recorded at the sub-registrar’s office by a partition deed.
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