As per the Indian Succession Act, the will is a legal wish of the individual composing it, of how he needs his property to be dispersed after his passing. A will is a record made by a deceased benefactor (an individual making a will) before his passing, where he communicates how he wants his property to be circulated after his demise.
The record turns out to be legitimately enforceable just in the event that it is composed and marked by the deceased benefactor and at any rate two observers who have seen the departed benefactor marking the will. It becomes effective simply after the passing of the departed benefactor and has no criticalness during his lifetime.
Despite the fact that it can't to enroll a will, the departed benefactor may decide to enlist it with a the Registrar or Sub-Registrar of the region court under whose locale the property lies. It is constantly fitting to enlist a will as enrolling gives it a legitimate sponsorship if there should arise an occurrence of any questions which may emerge later on, for example, debates with respect to the legitimacy of the will. The departed benefactor can likewise decide to guard the will in authority. The will can be pulled back any time.
Who can make a will?
Any individual who is a significant and has great emotional well-being can make a will. A will acquired forcibly or undue impact won't be substantial as it has not been made by the through and through freedom of the departed benefactor. An individual can make a will whenever during his lifetime, if he is a significant. There is no limitation on age or the occasions a will can be made.
Reason for a Will
It is significant for an individual owning any property to draft a will since it gives him command over the dissemination of his property. This empowers a smooth exchange of property to the individuals the departed benefactor wishes, after his passing. In the event that the deceased benefactor has minor youngsters, he can accommodate their consideration in his will. Progression of property frequently turns into a state of contention among family members or successors of a dead individual.
A will can help maintain a strategic distance from such clashes. The departed benefactor may likewise wish to give his property to noble cause or any foundation. He would not have the option to do this without a will. On the off chance that an individual bites the dust without making a will, the laws identifying with progression of property will produce results, which will conclude who will get shares in the property and the rate share that they will get.
What property does the will cover?
The will covers just such property of which the departed benefactor is the sole proprietor. If there should arise an occurrence of property together possessed by the deceased benefactor with some other individual, assent of the considerable number of gatherings mutually holding the property is required to execute the will.
How does a will come into power?
The departed benefactor delegates an individual called as an agent to care for the property in the will after his passing. If not, the court designates an agent. On the passing of the departed benefactor, the designated agent can apply to the region court for a request affirming the authority of the agent to fare thee well and convey the property. The locale court will examine the will and if the lawful beneficiaries of the departed benefactor have no issue with the will, the court will approve the agent to manage the property according to the arrangements of the will.
Will is the best medium through which an individual can guarantee that his property is partitioned according to his longing after his demise. In the event that an individual bites the dust with no will his property would be conveyed intestate under the Indian Succession Act, 1925 which has been corrected in 2005 and 2015 offering rights to ladies in family property. The Mohammedans are not administered by this Act. On the off chance that a Muslim bites the dust with no will his property will be appropriated according to Muslim laws.
Personal Details – one has to clearly give his personal details in the will. One has to specify details like son/ daughter of, residential address, age, date of birth, etc.
Declaration of Date – the date on which the will is being prepared has to be mentioned. It helps the court to identify the last and the valid will, in the case of multiple wills.
Validate Free Will – one has to clearly state that he is making the will with his free consent. He has to specify that there is no undue influence or coercion or pressure under which he is writing the will.
Provide Executor’s Details – an individual needs to nominate an Executor in his will. The Executor is the person who is responsible for executing the will. Along with providing the executor details, the testator should add a clause describing what would happen if executor dies before the testator.
Details of Assets– one can dispose of movable and immovable property through a will. The testator has to give details of all kinds of property that he wants to dispose of. In the case of immovable property like house, land, etc. he has to give a proper address. In the case of movable property like bank deposits, mutual funds, share, etc. he has to give authentic identification numbers. The testator should also specify the mode through which income generated from these assets would be distributed to the beneficiaries.
Liabilities of the Testator – testator should specify any liability that he owes and the mode of settling that liability through his assets. He should also specify the mode to settle probate charges and executor fees.
Name of the beneficiary(ies) - the testator has to mention the name and some personal details of the beneficiary so that the court can identify the individual. The testator can describe the relation like my wife, my son, my daughter, etc. In case, where the beneficiary is a minor, the testator should specify the legal guardian of these minors. In case, where the beneficiary is a daughter, the testator should specify different situation regarding her marital status.
Signature – testator has to sign the will at the end.
Signature of Witnesses – there is a requirement of getting the will tested by two witnesses. The testator has to specify the father’s name and the residential address of the witnesses.
One can also include codicil to make amendments or to alter the will. The testator can change the beneficiary, executors, assets, liabilities, etc. by adding codicil in the will. The court interprets will and codicil together to know the true intention of the executor.
Including all the above-mentioned elements would reduce the chances of ambiguity in the will. It would make it easier for the executor to obtain probate. Probate is essential to execute a will and codicil as discussed in next section.
To execute a will, one needs to get a probate from the court with able locale. Under the Indian Succession Act, just an agent can get a probate from the court. On the off chance that there is no agent named in the will, an application for the arrangement of agent must be filled in the court. This utilization of arrangement must be documented before a use of Probate is recorded.
Probate is a duplicate of will which has a court seal. It connotes that the will is the substantial and the last will of the deceased benefactor. An agent can't execute a will without a probate if the unflinching property in the will is situated in Mumbai, Kolkata, and Chennai. To acquire a probate following advances must be followed –
Application
The application of probate is filed by the lawyer. It has to be filed in the court which has the competent jurisdiction. In case, the value of properties mentioned in the will is very high, the case would be filed in the higher court.
Documents
It has to be proved to the court that the testator has died. The lawyer has to prove the validity of the will i.e. it has to prove that it was the last will and that it was by the free consent of the testator.
Notification
After the application is filed, the court notifies the posterity of the testator and the general public (through newspaper). It is to ensure that they have an opportunity to file an objection against “granting of probate”.
Fees
The parties have to pay a probation fee which generally depends on the valuation of assets mentioned in the will.
