All about Wills and Succession Law in India

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Understanding All About Last Will and Codicil

If a person dies without making a Will, his or her estate will devolve as per the law. In India, certain matters such as inheritance are decided by personal laws. Accordingly, Indian Succession Act, 1925 contains provisions for succession of estates of Hindus, Buddhists, Sikhs and Jains. Succession of estate of Muslims is administered as per Muslim Personal Law.

A Will is a legal declaration which contains the intention of its author (called ‘Testator’) with respect to his / her property which he/she desires to come into effect following his/her death. Simply put, it is a document which lists the testator’s wishes regarding appropriation of his/ her estate. While a Will is a legally enforceable document, there is no prescribed format for making a Will. A Will is divided into 4 parts: the introductory, the assets, the distribution and the execution. The testator introduces himself or herself, lists down the assets that are to be distributed, mentions the persons to whom each of those assets are to be given and signs the document at the end. The Will also names a person who is responsible for ensuring that the terms of the Will are fulfilled after the Testator’s death. This person is called the Executor.

What are the important guidelines for making a Will?

    Some of the important guidelines in this regard are as under:

    • You can bequeath only self-acquired (i.e. self-earned) properties. Estate acquired through inheritance cannot be bequeathed under a Will and will devolve upon the next of kin as per the applicable law
    • The title of the document should ideally be ‘LAST WILL AND TESTAMENT’.
    • Put the date of signing on the Will. In the event of there being multiple Wills, usually the latest Will is considered final
    • Clearly identify yourself as the maker of the will and use clear unambiguous language throughout the document.
    • State that you are of sound mind and that you are acting freely and willingly.
    • Mention your religion and age (“I, Raj Malhotra, Hindu, aged about 34 years, Indian citizen, …”)
    • Declare that you have revoked all of your previous Wills and Codicils.
    • Serially number each page of the Will.
    • Carefully state your assets in as simple terms as possible. (instead of “My fixed deposits with bank ABC, PQR and XYZ totaling to Rs. 2 Crore in principle to my wife”, you may say “All my fixed deposits to my wife”). Also, assets such as gold, silver and equities tend to fluctuate over time. In such cases it is advisable to mention them in terms other than their monetary value.
    • Mention a non-interested person as an Executor of the Will. There can be more than one Executors of a Will.
    • Sign the Will on each page in the presence of at least two disinterested witnesses. The witnesses should attest that the Will was signed by you in their presence. They do not have to know the content of the Will
    • Your signature must be placed at the end of the Will, else any text following the signature may be ignored.
    • Certain assets such as tenanted premises, ancestral property, HUF property and any property that is not in the name of the Testator cannot be bequeathed by a Will
    • With the creation of digital assets, it is advisable to bequeath your personal email accounts and other digital properties under your Will

What are the five essential features of a Will?

    The following five elements are required to be present in a valid Will:

    • Attestation: The Will must be duly signed by the testator in presence of at least two witnesses, who should countersign the document. The witnesses do not have to know the content of the Will.
    • Property: The Will should list the details of the properties to be bequeathed by the testator and make a provision by way of a residuary clause for properties which the testator may acquire subsequent to making the Will.
    • Declaration: The testator should clearly state his name, age, declaration regarding soundness of mind, date of making the Will and that the document is made under his or her free will.
    • Beneficiaries: The Will should have complete and accurate details of the beneficiaries and their share of inheritance in the properties
    • Registration: It is not compulsory to register a Will; however, it is advisable to do so. Registration requires the presence of the testator and the witnesses at the office of the Sub-Registrar of Assurances. Registration of a Will protects it against a challenge to its authenticity. The testator may choose to leave the Will in the safe custody of the registering authority in a sealed envelope. The Will is then handed over by the registering authority to the testator himself/herself on demand, to the testator’s executor on production of the testator’s death certificate.

What is a Codicil?

A Codicil is a document, which in effect, edits the Will. A Codicil to a Will is an extension of the Will and forms an integral part of the Will. If a testator wishes to revise his or her Will, he or she may execute a codicil. It is advisable to make a fresh Will instead of a series of codicils if there are major changes to be made to a Will. Such a fresh Will should contain a provision nullifying all earlier Wills and Codicils.

What is the Probate of a Will?

Probate of a Will, when granted establishes the authenticity of the Will. It is a conclusive evidence of validity of the Will and of the testamentary capacity of the testator. Probate can be granted by the competent court only to the Executor appointed under the Will.

The application for grant of Probate is made to the District Court or the High Court within whose jurisdiction the testator had resided.

    The application should include the following details:

    • Content of the Testator’s Will
    • Particulars about the execution of the Will
    • Time and place of the Testator’s death
    • Amount of assets likely to come to the Testator’s hands
    • That the Petitioner is the Executor named in the Will (in case of a probate)

The application should be executed and verified by the Executor or Beneficiary under the Will. Court fees payable on application for probate are calculated is based on the value of the estate, and can be maximum of Rs. 75,000. Once the Court receives the application, notices are sent to the various legal heirs and next of kin, inviting objections to grant of Probate to the Will. A public notice is issued on similar line in local newspaper inviting objections from interested parties. The Court, on being satisfied about the authenticity of the Will in question, grants probate to the Executor or Beneficiary named in the Will, as the case may be.

What is a Letter of Administration?

If a Will does not appoint an executor or if the executor is unable to fulfill his obligations for any reason, the Court grants a ‘Letter of Administration’ to the beneficiaries under the Will. Letter of Administration can be granted to one or multiple legal heirs or beneficiaries under the Will as it deems suitable for conveying the estate of the deceased. The process for grant of Letter of Administration is the same as that for Probate of a Will.

What is a Succession Certificate?

A Succession Certificate is a legal document that is granted by a Court of competent jurisdiction to the survivors and legal heirs of a person who has deceased intestate i.e. without leaving behind a Will. The transfer of assets and realization of the debts of the deceased can be concluded by his or her legal heirs only after a succession certificate is obtained from the Court. The process for obtaining a succession certificate is as under.

An application for grant of Succession Certificate is required to be made to the District Court or the High Court within whose jurisdiction the deceased person resided.

    The application should include the following details:

    • Name and address of the applicant, legal heirs of the deceased and their relationship to the deceased
    • Copies of PAN Cards and Ration Cards of all legal heirs of the deceased
    • Relationship of the applicant to the deceased
    • Particulars about the time and place of death of the deceased, accompanied by a death certificate
    • List of all the debts, securities properties and other assets for which the succession certificate is being obtained

A court fee is payable along with the application. This is usually a percentage of the total value of the estate of the deceased, up to a maximum of Rs. 75,000. This amount varies from State to State. The Court issues notices to all the respondents/legal heirs of the deceased, inviting objections, if any, to the grant of a succession certificate. A public notice is issued on similar lines in local newspaper. If, after the expiry of notice period (generally, 45 days), the Court does not receive any objection, it generally issues the succession certificate.

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