Will and Probate

A will or testament is a legal declaration by which a person, the testator, names one or more persons to manage his/her estate and provides for the transfer of his/her property at death. It includes codicil and every writing making a voluntary posthumous disposition of property. It is testamentary instrument by which a person makes disposition of his property to take effect after his death, and which, in its own nature, is ambulatory and revocable during his life. Thus, a Will can be changed by the executant as and when he so likes. It is a secret and confidential document which the executant is never ordered to produce.

The will is intended to come into effect after the death of the testator. However the will is revocable by the testator at any time. Although Wills are usually made for disposing property, they can also be made for appointing executors, for creating trusts and for appointing testamentary guardians of minor children.

A gift to take effect the life lime of the donor is a deed of settlement and not a Will. Section 63 of the Indian Succession Act, 1925 provides that a Will is liable to be revoked or altered by the maker of it at any time when he is competent to dispose of his property by Will.

When a person dies without having made a Will, he is said to have died intestate. His property is then inherited by his legal heirs in accordance with the law of inheritance applicable to him. It must be noted here that legal heirs generally include close family members such as one’s spouse, children, parents, brothers and sisters.

For Hindus, Buddhists, Jains and Sikhs the laws of inheritance have been codified in the Hindu Succession Act, 1956. For Christians the Indian Succession Act, 1925 will be applicable. Parsis have a different law of inheritance. Similarly, Muslims have their own law. That has, however, not been codified in nay legislation but is based on their religious texts. There are two major sects of Muslims – Shias and Sunnis. Both of them have different laws of inheritance.

Generally, a will should contain, inter alia, identification information (full names and addresses) of testator, two witnesses, the executor, and all beneficiaries. As well it should contain information about paying off any debts and taxes and identifying all the assets. The will should set out who the beneficiaries are, and what they are entitled to. In addition, the will should explain how any outstanding debts will be paid. If there are minor children, provision for appointment of a Guardian to look after them may also form part of the will. The will must be signed and dated. The will can be in any language, and need not use formal legal terms. It is also a good idea to register the will to prevent fraud or tampering.

A probate is a copy of a will certified by a court of competent jurisdiction. It proves that it is the last and final will of the deceased penned on a particular date. A probate is granted with the court seal and has a copy of the will attached to it. An administrator or executor appointed under the will may not be able to administer its provisions without a probate. It may also be necessary when the deceased leaves behind securities with various nominees and there is a dispute on their division. The nominee can only hold the assets in trust till these are divided as indicated in the will after a probate has been obtained. In the absence of a will or nomination, succession laws come into play.

We help our clients in making wills and also obtaining probate of the will from the competent court.

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