In this article, we will take a comprehensive look at wills and all its salient aspects
Introduction
A Last Will is a legal document that conveys a person’s final wishes, as specified prior to their death. Last Will and Testament – Indian Succession Act, 1925 governs testamentary succession (Part VI). In case any person dies intestate, their laws shall apply, otherwise, the Indian Succession Act also has rules for intestate succession, different for different religions. The Last Will and Testament is a legally binding document created by an individual known as the testator, which outlines the distribution of their assets and possessions, as well as their wishes regarding the custody of minor dependents and the management of accounts and interests. A Will takes effect only after the death of the testator. As per Section 2(f) of the Indian Succession Act, 1995 it has been defined as:
“The Will is a legal wish of the person writing it, of how he wants his property to be distributed after his death. It is a document made by a testator (the person making the Will) before his death, where he expresses how he wishes his property to be distributed after his death.”
Key Terms In A Will
Let’s have a look at some of the important terminologies
- Intestate: If a person dies without making a Will, he is said to have died ‘intestate
- Codicil: Codicil is an amendment or change made in the original will. (Section 2(b) and Section 62 of the Indian Succession Act)
- Executor: The executor is the person you select who shall be in charge of distributing your estate according to your will after you pass. A female executor is sometimes called an executrix.
- Probate: Probate is certifying the validity of the Will of the testator It is necessary to execute the Will. [2(f) of the Indian Succession Act]
- Testator or Testatrix: The person making the Will and signing his or her name.
- Bequest or Bequeath: A bequest is a property belonging to someone that they say that, after their death, they wish to be given to other people. Bequeath is the verb for the word bequest.
Why Does One Need A Will?
A will is a mandatory part of anyone’s life plan. It is a primary document used in multiple scenarios. Also, It is used in transferring one’s assets after their demise. Similarly, It is used while deciding on who gets to manage one’s estate or other owning. This allows one to decide and officiate who inherits their assets and when. Hence, with it, one can choose a guardian for their minor kids.
Key Terms In A Will
Introductory Statement
This part is important to understand who the testator or testatrix is, where he is residing, what his age is at the time of making it, and who all are in his family. Therefore, the Last Will and Testament essentials to be mentioned are:
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- Name of the Testator/Testatrix
- Father’s. Mother’s or Husband’s Name
- Age of the Testator/Testatrix
- Residence of the Testator/Testatrix
- List of Family Members
- Date of Execution
- Verification
Statement Of Assets And Liabilities
Assets and liabilities (Property) is the main context of the Will. Thus, they are stated in a descriptive manner. This helps in knowing the net worth. You could mention all your assets like bank investments (savings account, current account, fixed deposit receipts, recurring deposit accounts) financial investments (stocks, debentures, bonds, mutual funds,) immovable properties like houses, or personal assets like jewels, insurance like life insurance policies, retirement benefits, etc.
Liabilities are the money you owe to other parties for example bank loans, mortgage debt, taxes owed, etc.
Identification Of Beneficiaries And Executor:
On the making of a Will, one must know who are the beneficiaries for which property and who shall be its executor. Sometimes, The beneficiary gets a part of the property. Therefore, it must be mentioned which beneficiary is entitled to which property or a part thereof.
Who Can Write It?
- Any person who is a major, i.e., above 18 years of age
- The person must be of sound mind, memory, and understanding. For instance, An insane person in a lucid interval of sanity cannot be a Will-maker
- A person with a disability (For example impaired hearing, vision, or speech).
- Foreigners and convicts
- An intoxicated or ill person to a level that hampers his comprehensive decision.
What Are The Conditions For A Valid Will?
- Signature of the Testator
- Attestation by two or more witnesses
- Where witnesses must not be beneficiaries under it.
- Must not be obtained by fraud, coercion or undue influence.
A Will does not adhere to any particular format or does not require strict registration. There is no need for stamp paper and polarization. Firstly, It is optional for the testator or testatrix and it is not a mandatory requirement under the law.
Secondly, It can be revoked by making a subsequent one. The earlier one shall be automatically nullified. Furthermore, it can also be altered by executing codicil, which is a supplement or addition explaining or modifying completely or part of it.
How A Will Is Executed?
The following are the steps in the process of execution of a will:
- Authentication of the will: The above criteria are verified in order to establish that the will is genuine and is hence executable.
- Appointing an Executor: The next step is to appoint a person who is made legally incharge of making sure that directions and instructions of the will are met and that the stakeholders of the will receive their share as decreed.
- Executor Bond: The executor then posts a bond as a part of the process to secure his or her position of the executor in order to fulfil his or her responsibility as an executor
- Locating the Assets: Once the above formalities are completed, the assets listed in the will are located and vetted for authenticity.
- Valuation of the Assets: The assets are then valued by an independent actuarial valuation as on the date of the death of the deceased
- Identifying and Notifying the Creditors: Despite what might be stated in the will, the first obligation of the deceased’s assets is towards his or her creditors. Only after settling all the dues of the creditors can the estate be partitioned as per the will
- Preparing and filing the Tax Returns: Any tax formalities and pending returns of the deceased are filed and cleared so that there is no claim on the assets from the income tax authorities.
- Estate Distribution: This is the final step in the execution process where the assets are distributed amongst the beneficiaries and the execution of the will is complete
Consequences Of Not Having A Will Or Testament
When a person dies before producing a valid Will then it is termed as intestate. In this case, the state inherits the power to be the executor of the estate. Therefore, The state decides on the distribution of money and other assets among the legal inheritors. In addition to that, the state decides on the guardianship arrangements for the children as well when required.
What Happens If One Had The Will But Failed To Update It?
It is dangerous to have none or outdated Will. When a person fails to update it, they are permitting people whom they no longer have relationships with to inherit their owning and other assets. Let us imagine person A. A married B. He created a Will then. They divorced each other soon after. But A failed to update the Will and soon he passed away. As a result, B is justified to inherit all of A’s assets even when they are no longer together. In other words, not updating it might result in letting go of the assets and other powers to people who they are no longer in good terms with.
Conclusion
Last Will and Testament – Everyone knows what a will is in general. But it is the lack of detailed knowledge regarding wills that cause major disputes and disruptions in otherwise harmonious families. An ambiguous and unspecific will is open to interpretation and can be debated in the court of law for years. This is why it is important to hire a legal expert with ample experience in the field of drafting wills as he or she will be able to draft an airtight will which is clear and specific in its execution.
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