What is a Will?
A Will is a legal document by which a person, the testator, expresses his/her wishes as to how his/her property is to be distributed at the time of their death. Will is one of the simplest instruments used to transmit assets from one generation to another.
Any person of the age of majority can write a Will. A Will can be written on a simple piece of paper by anyone
The essential components of a Will:
- Name of the author of the Will
- Date and place where the Will is being written
- Two witnesses
- Testator & witnesses together sign the Will
- Details of the assets which one person wants to distribute after his death
- Name of the beneficiaries
- Details of which beneficiary will get which asset
- Name of a person(s) who will be the executor of the Will
Beneficiary of a Will:
In India, we have multiple personal laws so it is important to understand which succession law will apply to the testator of the Will.
Muslims follow Sharia and there are forced heirship rules as per Sharia. Muslims can write a Will only to the extent of 1/3rd of their assets. Even whom they can bequeath their 1/3rd assets are subject to restrictions and if it is to a person who is part of his remaining 2/3rd bequeathal than they have to take a consent of the other legal heirs.
Hindus, Sikhs, Buddhists and Jains follow Hindu Succession Act. While Indian Succession Act will be applicable in matters of succession to Christians and Parsi’s living in India.
In case of inter-religion marriages which succession act will apply will depend on the facts of the case like
- Under which act the marriage took place. In case they were married more than once under different religious ceremonies, then whichever took place will be applicable.
- What religion their children follow
Under Hindus Succession Act the Class I heirs of a Hindu male are:
- Widow
- Son/ daughter
- Mother (of the deceased person)
- Son/Daughter of a pre-deceased son
- Son/ daughter of a pre-deceased Daughter
- Widow of a pre-deceased son
- Son/ daughter of a pre-deceased son of a pre-deceased son (3 levels)
- Widow of a pre-deceased son of a pre-deceased son
The Widow, mother, and each of the children (son or daughter) take equal share. When one or more of such children are no more, then the Class 1 heirs in that branch will jointly share that son/daughter(s) share in the estate.
The Class 1 Legal heirs of a Hindu female are:
- Husband
- Son (s)
- Daughter (s)
It is interesting to note that in case of intestate death of a female the following rules will apply.
- Firstly to the Class 1 heirs in equal proportion
- In case there are no class 1 heirs then the estate will devolve upon the heirs of her husband
- In case there is no Class 1 heirs and also there are no heirs of husband are alive then it goes to mother and father of the deceased Hindu female
What happens if a Hindu Male/ female dies without a Will: In this case the Hindu Succession Act 1956 and amendment to the Hindu Succession Act 2003 applies. It is said that the person has died intestate.
Is it compulsory to a have a Executor to the Will: Yes it is compulsory to name an Executor of the Will. In case there is no Executor which has been named in the Will then in that case beneficiaries have to approach the court for execution of the Will.
Is Registration of the Will Compulsory in India: It is not compulsory to register a Will. In case one wants to register a Will one has to go to a sub-registrar office for registration of the Will.
Can a person change their Will? What happens in case of multiple wills: One can change one’s Will as many times as one wants but to avoid disputes or confusion it is important that one restricts the change of Will too often. In case of multiple Wills the last valid Will become final Will.
Probate:
A Probate is a process where on death of a Testator the executor approaches the court and obtains an administrative order for distribution of assets to the beneficiary as per the Will. Probate of the Will is compulsory only for people living in the High Court jurisdiction of Chennai, Mumbai or Kolkata or if you have an immovable property in the above-mentioned jurisdiction.
In case of dispute between the legal heirs or if the person dies intestate, obtaining Probate becomes necessary. In some cases especially for transfer of real estate the officials might insist on getting a probate. For NRIs it might be necessary for repatriation of the money or because of the rule in their country of residence or if a foreign citizen is inheriting these assets, their country of citizenship requires them to obtain a Probate.
Succession Certificate:
In case of a defective Will where the distribution of assets is not clear or estate of a deceased contains only immovable assets, one can approach a court to get Succession Certificate
Legal Heir Certificate:
A legal heir certificate is given by a district or higher court, which gives the details of all the legal heirs of the deceased person.
The process of transmission of assets from a deceased person’s name to the beneficiary:
- For Immovable assets:
- In case there is a nominee in the bank account or insurance policy there is a possibility that the bank/ financial institution will ask for a copy of the Will, Death Certificate and will transfer the assets in the name of the Nominee. However, in many cases especially if you have an account with Post Office or PSU bank they may also ask for Succession Certificate/ Probate. Since the law does not prescribe the documents required, each institution has its own policy in this regard
- In case of a Demat Account, the Nominee becomes the owner and each institution has different policy and requirements of documents
- For Immovable Assets:
One has to go the local municipal office/ sub-registrar office for getting the mutation done in one’s name. Normally the documents required are – Death certificate, affidavit of all legal heirs, and copy of the Will and/or Probate.
In a nutshell, planning your estate is very important, as writing a Will on your own may not be the most tax efficient and prudent way. One should consult an expert to plan one’s estate especially for NRIs as they may have to also account for cross border laws. Secondly, it is important that one appoints a professional executor rather than one’s own family members (especially if all are non-residents).
