Overview

Make A Will

A Will is made by a person when he desires to distribute his wealth to his near and dear ones after his death. Mostly a person gives his property only to his wife and children or if it is a woman, she gives all her assets to her husband and children. But sometimes you may want to give some share of your assets to your brother, sister, mother, father, uncle, aunt, niece, nephew, cousin, a friend or even your maid, driver, watchman or any other person whom you like. But when you have to make such a distribution, you are always confused as to how to sort it out.

To begin with, make a list of all your properties. Then make another list of all the beneficiaries to whom you want to give your property, on the other hand. Finally, you should decide who gets what.

Things You Should Know When Making A Will

Clarity You have to clearly write the name, age, address, relationship of the beneficiary with you and any other details of the beneficiary and mention the full details of the property that you desire to give to the particular beneficiary. Mention the date clearly in words rather than numbers.

Integrity of the Document Remember that once a property is given to one particular beneficiary, then you can't allot the same to another beneficiary as a whole. In such instances where you want to give one property to many beneficiaries, you have to clearly draw the lines on how much share of that property goes to each beneficiary. Or if it is to be equally shared, then mention it clearly.

No Ambiguity The words of the Will should never be ambiguous or confusing or meaningless. This can make the Will void with respect to that particular part which is meaningless or confusing.

No Handwritten Text in a Printed Will Do not write in on a printed will. Put your signature just below the last line of the Will. Any text below the signature is treated as not a part of the Will and will be discarded. Hence your signature is very important and needs to be carefully placed.

Handwritten Will Handwritten Wills are legally valid too. But never use different inks if your Will is handwritten, and never use different handwritings in the same document. All this leads to suspicion.

What Should Be Included In The Will?

A Will should have the following necessary details:

    Testator Details Name, age, address details of the person making the Will
    Beneficiary Details In case of multiple beneficiaries, the details of each beneficiary like name, age, address, relationship of the beneficiary with the Testator.
    Property Details The details of the properties which the testator wants to give to his beneficiaries under his Will like the description, the registration number, the date of registration and whether it is his self acquired property etc. If it is a movable property, then the details and description of each should be clearly and individually mentioned.
    Specific Assets Any specific assets or a gold items should be specifically described
    Guardian for Minors If the Testator wishes to give his property to any beneficiary who is a minor, then definitely he should appoint guardian who will take care of the minor's property till the minor attains majority.
    Executor of the Will The Testator should appoint an Executor to his Will. An Executor is a person who shall implement the Will after the Testator's death.
    Signature and Date The Will should be clearly dated and signed by the Testator at the place in the document just below the last sentence in the document.

Exclusions The Testator cannot give any property that is joint family property or ancestral property that is common to many other members too. Such a Will becomes void.

How To Make It Legally Valid?

These are the points you have to do while making the Will

    Drafting-Draft your Will on a plain paper or Stamp paper. The Will should be either handwritten or printed. The Will should not be ambiguous and should not have incomplete statements or contradicting statements.
    Signature The Testator should sign the Will just below the last sentence in order to avoid any inclusions in between. Any text placed below the signature shall not be taken as part of the Will, hence make sure you sign only after including all details.
    Witness Two witnesses should sign at the end of the document stating that they have witnessed the Testator sign the Will. A Will signed in the absence of witnesses becomes legally invalid.
    Keeping it Safe -After signatures, the Will becomes legally valid. Make sure to keep it in a safe locker, or entrust with the Lawyer or an Executor who is reliable.

Registration of the Will

There is no need to register the Will. But a registered Will always helps in clearing any future legal issues among the heirs. Once registered, no one can question the validity and authenticity of the Will or the Testator. To register a Will, you need to go to a nearby Sub-Registrar office and register the Will free of cost.

If You Don't Have A Will

The main reason to make a Will is to avoid all sorts of legal disputes and quarrels among the family members or near and dear ones of the deceased person if he has left any movable or immovable property behind.

A Will by the owner of the property always depicts a clear picture as to how the distribution is done.

Imagine there are several properties and several heirs to it. These can happen:

    All start claiming their portion of share in the properties. Distribution process becomes very difficult if the heirs are not willing to compromise with each other.
    Relationships may get strained, lot of frustration among family members resulting in unnecessary arguments and hard feelings.
    All this take the whole group to the doorstep of civil courts, which are already flooded with cases. Litigations take years to settle and in the meantime property may suffer from lack of maintenance and trespassers.
    In case of debts and liabilities of the deceased, the legal heirs may have to bear the burden.

How assets are distributed in the absence of a Will?

If a person dies without making a Will then all his properties get distributed to his legal heirs according to the personal succession laws, based on the religion.

If there are no legal heirs in the first degree for the deceased, then the properties can go to the second degree of legal heirs and finally if no legal heirs at all then the State would take the property.

The reason for all this?? Just a matter of few minutes was not spared by the deceased to make a proper Will. Hence it is very important that each individual in the society who has started earning and made some properties or bank balance, should definitely make a will irrespective of whether you are 25 or 65.
How to Protect Your Dear Ones Through A Life Interest Clause?

Creating a life interest in any of your properties in favour of any beneficiary is a good option to avoid the beneficiary from being thrown out of the property at any time. To avoid such situations it is always better to create an interest for life in favour of the beneficiary in the property. If a life interest is created on any property then it allows that particular beneficiary to live and enjoy the property till his or her death. The property on which such a life interest is created cannot be sold, mortgaged or alienated by any methods by the beneficiary himself or by any other person. Hence a life interest is usually created in the following cases:

    Where a husband leaves behind his widow and wishes that his wife should be safe and secured till her death in the house she lives.
    Where a parent leaves behind a mentally incapacitated son or daughter who cannot enter into any property transactions and wishes that their disabled son or daughter is safe and secure till the end in the property with life interest.

How To Provide Your Dear Ones With Annuity-A Regular Income After Your Death?

While making a Will you can include certain important and valid clauses that can ensure that any of the needy beneficiaries are provided a source of income throughout their life from any of your properties or assets. Such a regular payment made to a beneficiary in regular intervals of time like monthly, quarterly, half-yearly or annually from the assets of the Testator is termed.

When you make an Annuity clause you have to do the following:

    Describe in detail the provision of the Annuity that is being made to the beneficiary
    Name, age, address and relationship of the beneficiary in whose favour Annuity is made.
    The details of the particular source of assets from which the Annuity has to be paid.
    To clear any debts or liabilities on the property from which Annuity is to be paid and ensure that there are no charges on the property.

Probate and Letters of Administration

Probate
On the event of the death of the testator the property will not automatically devolve on the beneficiary; either the beneficiary or the executor must obtain a probate from the court of law. A probate is a certificate by the court that the will is valid. If a probate is taken a notice has to be given to the beneficiaries so that they can file their necessary objections. Even if no objection is given, a court fee has to be paid before a probate is obtained. Even after a will is made a path is left open for the court to hear objections to the will, if any, by the beneficiaries.

A probate means a copy of the Will, certified under the seal of a competent Court with a grant of administration of the estate to the executor of the testator. It is the official evidence of an executor's authority. A probate is mandatory when the Will is executed by a Hindu, Christian or Parsi in the cities of Mumbai, Calcutta or Chennai, or pertains to immovable property situated in Mumbai, Calcutta or Chennai.

Effect of grant of probates : A probate granted by a competent court is conclusive evidence of the validity of a Will until it is revoked and no evidence can be admitted to impeach it except in a proceeding to revoke the probate. However, it only establishes the legal character of the executor and in no way decides the title or even the existence of the property devised. The grant of the probate decides only the genuineness of the Will and the executors right to represent the estate.

The grant of a probate is conclusive evidence of the testamentary capacity of the person who made the Will.

A probate is conclusive as to the genuineness of the Will and appointment of the executors.

Once a probate is granted, no suit will lie for a declaration that the testator was of unsound mind.
Probate is conclusive as to the representative title of the executor.

To whom probates can be granted : Under the Indian Succession Act, 1925, a probate can be granted only to an executor appointed under a Will. However, it cannot be granted to a minor, a person of unsound mind, or to association of individuals, unless it is a company that satisfies the conditions stipulated by the government.

When a probate can be granted : A probate cannot be granted until the expiration of seven days from the date of the testator's death.

Letters of Administration: In the event a person dies intestate or a Will does not name any executor, an application can be filed in the courts of law for grant of probate.

To whom can a LoA be granted : Under the Indian Succession Act, 1925, a LoA can be granted to any person entitled to the whole or any part of the estate of the deceased person. However, it cannot be granted to a minor, a person of unsound mind, or to association of individuals, unless it is a company that satisfies the conditions stipulated by the government.

When can a LOA be granted : A LoA cannot be granted till the expiration of fourteen days from the date of the testator's death.

Legal Declaration: The documents purporting to be a Will or a testament must be legal, i.e. in conformity with the law and must be executed by a person legally competent to make it.

Disposition of Property: The declaration should relate to disposition of the property of the person making the Will.

Death of the Testator: The declaration as regards the disposal of the property must be intended to take effect after his death.

Revocability :The essence of every Will is that it is revocable during the lifetime of the testator. People capable of making Wills are, Every person who is:
not a minor
of sound mind
free from fraud, coercion or undue influence

Executors:
An executor is a person who is appointed by a testator to execute his Will. In other words, an executor is duty bound to distribute the assets of the testator as per the provisions of his Will. A probate of a Will is granted only to an executor appointed by the Will.

Who can be an Executor: All persons capable of executing Wills can be executors. Even a minor can be appointed an executor of a Will, but a probate cannot be granted to the minor until he attains majority. A testator can appoint one or more executors. The appointment of an executor may be absolute or for a limited purpose or limited time. An executor as such does not derive any benefit under the Will, unless specifically provided for. However, as an executor has vast powers and the property vests in the executor until it is finally distributed to the legatees, it is therefore advisable to appoint a responsible and accountable person/institution such as a bank as an executor. The Executor is primarily appointed to manage the estate of the deceased for the benefit of the beneficiaries/legatees under the Will.

Legal status of the Executor: The executor is the legal representative for all purposes of a deceased person and all the property of the testator vests in him until the property is distributed as per the provisions of the Will. The executor is entitled to represent the testator in any legal action (not including criminal or defamatory proceedings). For example, an executor can sue for recovery of the testator?s debts. It is only the legal estate of the deceased that vests in the executor and the vesting is not of beneficial interest. The property vests in the executor only for the purpose of representation and administration.

Duties of an Executor:

    To ascertain the assets of the deceased person.
    To pay testamentary and funeral expenses.
    To collect the debts and assets of the deceased.
    To pay the debts of the deceased.
    To apply for a Probate, whenever necessary.

Applicable laws and Special provisions

Applicable Laws

    The Indian Succession Act, 1925
    Hindu Personal Laws
    Muslim Personal Laws
    The Indian Registration Act, 1908

Special Provisions

Hindus, Sikhs, Jains and Buddhists Will :
A Will is not revoked upon the marriage of a Hindu, Sikh, Jain or Buddhists. The executor can also be the witness to the Will. A probate is mandatory in the event that a Will is executed in the cities of Mumbai, Calcutta or Chennai, to the extent that the Will pertains to immovable property in Mumbai, Calcutta or Chennai.

Parsis and Christians Will:
A probate is mandatory in the event that a Will is executed in the cities of Mumbai, Calcutta or Chennai, to the extent that the Will pertains to immovable property in Mumbai, Calcutta or Chennai. On the marriage of a Parsi or Christian testator, his/her Will stands revoked.

Muslims Will
Muslim Personal Law governs a Muslim testator's power to make a Will, the nature of the Will, its execution and attestation thereof etc. Under the Muslim Personal Law, a Muslim testator can make a Will orally or in writing and no form is required for such writing. However, it is preferable to have a written Will. If the Will is in writing it need not be attested. It may be noted that the provisions of the Indian Succession Act do not generally apply to a Muslim testator unless specifically stated in the Act.

In India, a person who is a major and of sound mind can make a Will and he can dispose of all or any part of his property by Will. However, there are two basic restrictions on the power of a Muslim testator to make a Will, A Muslim can bequeath only one-third of his property by Will. The heirs of a Muslim testator may consent to bequest in excess of one-third of the testator's assets.

A Muslim may change his Will during his lifetime or cancel any legacy. A Will may also become void if a Muslim testator, after making the Will, becomes unsound of mind and continues to be so till his death. Similarly, a bequest which is contingent, or conditional or in the future or is alternative to another, pre-existing one, would be void. If an executor is appointed by a Muslim testator, the powers and duties of the executor will be in accordance with the provisions of the Indian Succession Act which have been discussed elsewhere.

Name : Seshagiri

Law Firm Name : Nandi asssociate

Country : India

City : Bangalore

State : KARNATAKA

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