‘The Indian Succession Act 1925’ is applicable to Wills and Codicils made by Hindus, Christians, Sikhs, Jains, Buddhists, Parsis ; Muslims are largely covered by Muslim Personal Law.
Lot of complications may happen in case a person dies without making a registered Will. It may lead to endless legal battle amongst potential claimants.
A Will or testament is a legal document prepared and declared by anyone above age 21 years, in which, a person making Will (Testator), names one or more persons to manage his/her estate and makes provision for the distribution of his/her property after death. A Will is a testamentary document which comes into effect only after the death of the testator. If the person dies without writing any Will then he is said to be have died intestate.
Codicil is supplement to a will, containing an addition, explanation, modification, deletion or revoke provisions of something in the will.
Testator is a person who makes a Will and executes it.
Executor is an individual appointed by testator to carry out the directions, instructions and wishes of the testator.
Probate is a copy of the Will, certified under the seal of a competent Court.
Who can make ‘Will’: Every person who is 21 years of age, sound mind and willing to write a Will can make a Will. One can make a Will only of his/her self-acquired properties.
A person of unsound mind can also make a will but only in lucid intervals. Deaf and Dumb, Prisoner can also make a Will. Minor, insolvent, person disqualified under any law by the court, are prohibited to make a Will. Will executed by a minor is void and inoperative, though a testamentary guardian can be appointed for the minor to dispose off the property.
For whom ‘Will’ can be made: Any person capable of holding property can be a legatee under a will and therefore a lunatic, minor, corporation, Hindu deity can be a legatee. If the minor person has been named as legatee by a testator then a guardian should be appointed by the testator himself to manage the bequeathed property.
What can be bequeath in a ‘Will’: Any movable and immovable property can be disposed off by a will, by it’s owner. That the property must be a self -acquired property by that person and it should not be an ancestral property of the testator.
When a person dies, his or her estate must go through probate, which is a process overseen by a probate court. If the decedent leaves a Will directing how his or her property should be distributed after death, the probate court must determine if it should be admitted to probate and given legal effect.
Typically, the executor named in your will would start the process after your death, by filing a petition in court and seeking appointment. Your executor would then take charge of your assets, pay your debts and after receiving court approval, distribute the rest of your estate to your beneficiaries.
If the decedent dies intestate without leaving a will, the court appoints a Personal Representative to distribute the decedent's property according to the laws of Descent and Distribution. These laws direct the distribution of assets based on hereditary succession.
As a general rule a Will has no legal effect until it is probated. A Will should be probated immediately and no one has the right to suppress it. Statutes impose penalties for concealing or destroying a Will or for failing to produce it within a specified time.
Probate proceedings are usually held in the state in which the decedent had domicile or permanent residence at the time of death. If, however, the decedent owned real property in another state, the Will disposing of these assets must also be probated in that state.
Probate of a copy or duplicate of a will is not permitted unless the absence of the original is satisfactorily explained to the court. If a properly proved copy or duplicate of a Will that has been lost or destroyed is presented to the court, it may be admitted to probate. Some states have special proceedings to handle such occurrences.
A codicil, which is a supplement to a Will, is entitled to be probated together with the Will it modifies, if it is properly executed according to statute. If it is complete in itself and can stand as a separate testamentary instrument independent of the Will, the codicil alone can be admitted to probate. A codicil that has been subsequently revoked by another codicil is not entitled to probate.
A Will made in a foreign language will be admitted to probate if the testator understood what it contained and it otherwise complies with other statutory requirements. A translation must accompany the Will.
It is the copy of the Will given to the executor, together with a certificate granted under the seal of the court and signed, by one of the registrars, certifying that the Will has been proved. The copy of the Will and grant of administration of the testator’s estate together, form the probate. It is conclusive evidence of the validity, due execution of the Will and of the testamentary capacity of the testator. A probate is obtained to authenticate the validity of the Will and it is the only proper evidence of the executor’s appointment. Probate proceedings cannot be referred to Arbitration. The probate court (whether it is the District Court or High Court) has been granted and conferred with exclusive jurisdiction to grant probate of a Will of the deceased.
‘Wills’ By Muslims Under ‘Mohammedan Law’: A Will under Mohammedan Law is called as Wasiyat, which means a moral exhortation or a declaration in compliance with moral duty of every Muslim to make arrangements for the distribution of his estate or property.
The Mohammedan Law restricts a Muslim person to bequeath only up to 1/3rd of his estate by writing Will, which will take effect after his death and can exceed it’s limit on testamentary power of 1/3rd to 1/4th only where heirs gives consent or only heir is husband or wife.
The probate process has advantages and dis-advantages. The probate court is accustomed to resolving disputes about the distribution of assets fairly quickly through a process with defined rules. In addition, the probate court reviews the personal representative’s handling of each estate, which can help protect the beneficiaries’ interests.
Disadvantage, however, is that probates are public. Your estate plan and the value of your assets will become a public record. Also, because lawyer’s fees and executor’s commissions are based on a statutory fee schedule, a probate may cost more than the management and distribution of a comparable estate under a living trust. Time can be a factor as well. A probate proceeding generally takes longer than the administration of a living trust.
In general, the probate process involves collecting the decedent's assets, liquidating liabilities, paying necessary taxes and distributing property to heirs.
The probate process begins when the personal representative files with the clerk of the probate court a copy of the death certificate along with the Will and a petition to admit the Will to probate and to grant letters testamentary, which authorize him or her to distribute the estate. Although the personal representative usually files the probate petition, it can be filed by any person who has a pecuniary interest in the will.
A formal probate proceeding must be held to establish the death of the testator, the residency of the decedent, the genuineness of the Will, its conformance with statutory requirements for its execution and the competency of the testator at the time the Will was made. These requirements are usually fulfilled by the attesting witnesses who were present at the time Will was made and who would certify that it was properly executed. The number of attesting witnesses is prescribed by the law. If fewer than the required number witness a Will, it be declared void and the testator's property will pass according to the laws of descent and distribution.
When some or all of the witnesses to a will are unavailable, special steps are taken. If the required witnesses have died before the testator, the person offering the will must offer proof of death, in addition to evidence of the genuineness of the signatures and any other proof of execution available. If no one objects to the will at the hearing, it will be admitted to probate.
Informal probate proceedings generally do not require a hearing. The personal representative files the death certificate and Will, along with a petition to admit the Will. The clerk of probate court reviews the submissions and recommends to the court that the Will be probated. Once the court issues the order for informal probate, the personal representative files a series of forms that demonstrate that notice has been given to all interested parties about the probate, the decedent's creditors have been paidand the estate's assets have been collected, appraised, and distributed to the designated heirs.
The probate of a Will can be opposed or contested on the ground that the instrument is void because of the testamentary incapacity of the testator at the time the Will was made, the failure to comply with the formalities required by law or any matter sufficient to show the nonexistence of a valid Will. When a Will is contested, formal proceedings are required.
Will contests are concerned with things such as failure of due execution, fraud, mistake, undue influence, lack of testamentary capacity or lack of intent that the instrument be a Will. Issues of internal validity, such as violation of the Rule against Perpetuities, must be raised in proceedings at a later stage of administration. Although a Will has been probated as a genuine expression of the testator's intended distribution of property upon her or his death, the estate might be disposed of according to the laws of descent and distribution if the testamentary provisions violate the law.
Only a person having some interest that will be affected by the probate can contest it. Such persons include next of kin who will receive property if the will is set aside and intestacy results, purchasers of property from the heir or heirs, administrators or personal representatives under prior wills and the state, if there is a possibility of Escheat, which means that the government will receive the property if no living heirs can be found. Creditors, however, generally are not entitled to contest the will of a debtor.
Wills often contain instructions on who should be appointed legal guardian of the decedent's minor children. The probate court may investigate the qualifications of the proposed guardian before granting an order of appointment. When a will does not contain a guardianship provision, the court itself must determine based on the best interests of the children, who should be appointed guardian.
Executor of the Will:The executor carries out the terms of the Will and sees the estate settlement process to completion. The executor should have financial knowledge and patience, because that person will be responsible for collecting the deceased’s assets, paying bills, submitting tax returns, submitting and petitioning for court documents, and distributing the assets to beneficiaries on behalf of the estate. If your executor does not have any experience with estate settlement, he or she may take help of an attorney . You may appoint more than one executor, if you know two people who have skill sets that make them good for the role together as co-executors. You may also wish to appoint a professional, such as, a lawyer, accountant, bank, or trust company as executor or co-executor.
Alternative Beneficiaries:You should consider alternative beneficiaries in case your primary beneficiary does not survive you. If a beneficiary is too young or too disabled to handle an inheritance, you may consider setting up a trust for his or her benefit under your Will or living trust. Once you have decided who should receive your assets, it is very important that you correctly identify those chosen individuals and charitable organizations in your Will or trust. Many organizations have similar names and, in some families, individuals have similar or even identical names. An estate planning lawyer can help you clarify and appropriately identify your beneficiaries.