WILLS & TESTAMENTARY – Advanced

Importance of making a Will

Any individual possessing and owning certain disposable property/ies would want to safeguard them after their death, by a proper distribution and allocation of such property/ies. However, a person is not bound to bequeath their entire wealth or property mandatorily to their legal heirs post death. Whole or a part of one’s wealth and assets can also be given to a trust.  Also, a Will is made in order to avoid disputes/litigation between family members of the testator after his/her death. In the absence of a will, the property shall devolve upon the heirs as per Indian Succession Act, 1925.

Properties that can be Disposed of by Will

A person can dispose of all his/her movable, immovable, intellectual property and materials having emotional value attached to them such as portraits, a certain piece of furniture or a musical instrument, jewellery and others by way of a Will, provided that, such property is out of their own earnings and they themselves have valid or legitimate title to that being bequeathed.

When executed?

A Will can be executed after testator’s death. Bequeathing one’s wealth or property does not mean that the testator has lost ownership and control of the same. Until their lifetime, everything will vest in the testator of a Will. After the testator’s death, their legal heirs or executor if appointed any, should carry on the execution as per the provisions of the Will.

When can a Will be considered invalid?

  1. When it is made by a physically challenged person without his/her knowledge and consent;
  2. By undue influence or coercion;
  3. If it is made by an intoxicated person;
  4. When the property mentioned to be disposed of by such Will does not belong to the testator.

Legal provisions

A Will is challengeable in the Court of Law. This means that any person who feels that his/her rights are infringed by such Will, can challenge the validity of its contents and the circumstances under which the testator had written it.

Stamp duty & Registration

There are no stamp duty and registration expenses involved as it’s not mandatory to register a Will. However, if a person wishes to register their Will, they may do so by following the registration procedure, which requires such person to go to the Sub-Registrar’s office along with the witnesses who have signed on the Will. In case, a person is physically incapable of going to the Sub-Registrar’s office, the Sub-Registrar may visit that person’s residence for the same purpose, by charging some fees for a visit. Registration of a Will comes with a set of advantages as well as disadvantages. The testator should bear in mind that the Codicils/Supplementary Will if any, also need to be registered and that the Supplementary Will is the final Will.

Probate

A probate is an instrument for verifying the authenticity and genuineness of a Will by the administrator or executor appointed by the court, in order to carry on the provisions of a Will (“Probate”). A probate for a will is required to be obtained only under circumstances mentioned in section 213 of Indian Succession Act, 1925.

A probate is granted by the high court of state under whose jurisdiction the property is located. Following is the procedure to obtain Probate:

  1. Application to the High Court;
  2. Submission of essential documents demanded by the high court;
  3. Issuance of notification by the High Court; and
  4. Payment of fees to the High Court;

Tax benefit

Any property acquired through a Will does not attract tax while receiving such property. However, any income in the form of sale proceeds or rental income arising from such property later, shall be taxable in the hands of such legal heir subject to the provisions of the Income Tax Act, 1961.

Estate Planning

These days, the concept of estate planning is talk of the town/the trendiest ongoing topic. It’s very crucial to plan one’s estate while one is in a good state and physical condition, in the present. Gone are those days when estate planning was only done in the age of seventies or eighties. In order to carry on effective estate planning, it’s better to seek a professional’s advice.

This article is written apropos to our older article regarding some basics of Wills, which can be viewed here.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

About the author

vishakhajoshi

View all posts

10 Comments

Leave a Reply

Your email address will not be published. Required fields are marked *