It is important that we make a Will irrespective of our age, financial status and gender. Not having a Will can create several problems for your loved ones and your legal heirs may have to spend more time, money and energy to claim the money or property rightfully due to them.
Words: Sangeeta S
IF you die without leaving a Will, the law decides on whom your wealth will ultimately be given to. Obviously, we do not want such a thing to happen as it is our wealth and we should be able to decide who should be getting it, right? So make a Will today.
What happens if you die without a Will? When you die without a Will, it is called dying intestate (a person dying without making a will) or intestacy. And in that case, the wealth is divided as per The Indian Succession Act, 1925 which is a law applicable to all Indians except Hindus, Sikhs, Jains, Buddhists and Muslims as they are governed under separate laws of succession. Hindus, Sikhs, Jains and Buddhists are governed by the Hindu Succession Act, 1956. As per the Hindu Succession Act of 1956, if a person dies intestate, his wealth is distributed as defined by the law.
If a male dies intestate then the wealth goes to his heirs belonging to Class I and if they are not available, then it goes to his Class II heirs.
In case both are not available, then the wealth goes to agnates (distant blood relative of male lineage) and if they are also not there, then it is given to the cognates (distant blood relatives of male or female lineage). And lastly if none are available, then the wealth goes to the government. In case of a female dying intestate, the wealth first goes to her children and husband. If the female does not have any children then the property inherited from her parents goes back to her natal (her blood ancestry) family and any property inherited from her husband or in-laws gets transferred to the heirs of her husband.
To avoid such unnecessary complications, it is best to write a Will. A Will supersedes everything so if you do not want your wealth to go into the wrong hands and you wish to save your loved ones from unnecessary complications, it is a great idea to write a Will.
People often confuse between a Will and a nomination; they are two different things. In legal proceedings, Will supersedes a nomination, says an expert from the field.
The best way to avoid complication and ambiguity is to write a clear Will – a Will supersedes everything else.
Writing a Will is really simple and we have discussed this in our earlier issues too. But just to refresh our readers here is a quick recap on ‘how to make a Will’.
Making of a Will
Anybody can make a Will at any time provided the person is an adult, above 18 years of age and is of sound mind. You can Will all your assets and property to whom you wish to provided you have complete ownership. All you need is a piece of paper where you write your Will. You have to sign the Will or put your thumb impression on the Will in the presence of two witnesses. Both the witnesses also need to sign or put a thumb impression in your presence. Anyone can be a witness to your Will – including the executor.
Now, who is an executor? An executor is the person whom you assign the duty of carrying out your instructions after your death. Anybody above 18 years with a sound mind can be your executor. However, if you have missed appointing an executor in your Will, the court will appoint an administrator to execute your Will. In case the executor appointed by you is incapable of carrying out the execution or is incapable of carrying out the job, in that scenario also the court will appoint an administrator.
Once your Will is ready with signatures, it becomes a valid legal document and getting it registered is not mandatory. However, if you wish to get it registered, do it personally or through an authorized agent. You will be required to present the Will before the registrar for registration. Generally, you do not have to pay stamp duty on Wills but you will have to pay registration fees; the fees and procedure are different for different States of India.
The registration of a Will does not fall under the category of compulsorily registrable document says Rishu Agarwal, Advocate Supreme Court of India and Associate of New Delhi based law firm Legal Consultus, our expert. However, it is always advisable to have the Will registered for a few reasons – firstly, it vindicates the intention of the person who is making the Will, which may be taken into account in case dispute lands up in the court of law. Secondly, in case the original Will is lost, a probate may easily be obtained from the certified copy of the same, he adds.
Will can be changed as many times during one’s lifetime as you desire even if it has been registered. For making changes in a registered Will, you may apply directly or through an agent to the Registrar. Ideally, if you are making substantive changes to a Will in order to convey your wishes properly, you should execute a codicil. A codicil is a written statement which supplements or modifies an existing Will. It must be executed in the same manner as that of the original Will. And lastly, if you want to cancel your Will you have that option too. Make another Will or destroy the earlier Will.
So go ahead and make your Will and of course if you wish you can always withdraw or change your Will anytime you wish.
Will is the best option for anyone and everyone. But in case there is no Will the legal heirs have the option of getting a succession certificate to make up for the absence of Will. But it is not as simple as it sounds.
If a male dies without a Will, his wealth does not get transferred automatically to his spouse. All his children and his spouse become equal claimants. And even if the children give consent for the wealth to be transferred to their mother, it has to go through a process which can be complex and may take time too.
To give an example Mr. Sharma (name changed) was careful with all his bank accounts and other investments and had registered his wife as nominee. He also had some shares where he forgot to add nominee. Even his financial advisors did not notice this. Now after his death all the bank accounts got transferred to his wife’s name except the shares. The wife was asked to produce succession certificate from court in order to get the shares transferred to her name. Now since Mr. Sharma had two children so the claimant for the shares was now 3 persons – the wife and two children. The law said, if both the children gave consent then the shares will go to his wife. The children agreed and it looked simple. But our systems are such that this simple case of obtaining succession certificate took complete sixteen months with children travelling several times to appear before the judge to give consent.
It may not happen in all the cases; some cases may get solved smoothly. It depends on the court and your advocates. Agreed we have laws where in absence of Will succession certificate can be obtained. But if all these can be avoided by a simple process of writing a Will, it is a good idea to write a Will.