Wills / Trusts

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How to draft your Will and when?
Wills / Trusts

How to draft your Will and when?

Introduction:

Creating a will is essential to guarantee that your possessions are distributed in accordance with your preferences following your death. A will enables you to select your beneficiaries, appoint an executor, and make specific bequests, such as personal property, etc. In addition, a will can reduce disagreement among your loved ones and guarantee that your estate is administered in a timely and effective manner. Taking the time to write a will is a simple but necessary step in protecting the interests of your loved ones and ensuring that your desires are carried out after your death.

 

When should you have your WILL drafted?

Everyone should make a will at some point in their lives, no matter how old they are or how much money they have. Many people think that wills are only important for older people or people with a lot of money, but the truth is that everyone can benefit from having one. It's never too early to start thinking about your estate plan and making sure your loved ones are taken care of after you die. Some of the most common reasons to make a will are getting married, having children, buying a house, or going through a big life change like getting divorced or losing a family member. In the end, anyone who wants to make sure their assets are divided the way they want should think about making a will.

 

Important aspects to keep in mind while drafting a WILL

 

1: Determine your assets

The first step in drafting a will is to determine your assets. This includes everything you own, such as real estate, bank accounts, investments, and personal belongings. It's important to make a list of all your assets and their approximate value to ensure that nothing is overlooked.

 

2: Identify your beneficiaries

Once you have determined your assets, the next step is to identify your beneficiaries. These are the individuals or organizations that you wish to leave your property to. Beneficiaries can be family members, friends, charities, or other organizations. It's important to consider the needs and circumstances of each beneficiary when making these decisions.

3: Appoint an executor

An executor is the person who will be responsible for carrying out the instructions in your will. They will manage your estate, pay any debts or taxes owed, and distribute your assets according to your wishes. It's important to choose someone you trust and who is willing to take on this responsibility.

 

4: Draft your will

Once you have identified your assets, beneficiaries, and executor, it's time to draft your will. There are two options for drafting a will: hiring an attorney or using a will-making software or template. If you have a complex estate or have concerns about legal issues, hiring an attorney may be the best option. However, if your estate is relatively simple, using a will-making software or template can be a cost-effective and efficient option.

When drafting your will, be sure to include the following information:

  1. A clear statement that the document is your will
  2. Your name, address, and contact information
  3. A statement revoking any previous wills or codicils
  4. The appointment of an executor
  5. A description of your assets and how you want them to be distributed
  6. Specific gifts, such as personal belongings or heirlooms
  7. Any instructions for the care of minor children or dependents
  8. Any charitable bequests or donations
  9. Your signature and the signatures of two witnesses

Get is professionally drafted: WILL DRAFTING

5: Sign and store your will

Once your will is drafted, it must be signed and witnessed in accordance with state laws. In most states, the will must be signed by the testator (the person making the will) and two witnesses who are not beneficiaries or spouses of beneficiaries. The witnesses must be present when the testator signs the will and must sign it themselves. It's important to follow state laws carefully to ensure that your will is valid.

After your will is signed, it should be stored in a safe place, such as a fireproof safe or with an attorney. Be sure to inform your executor and loved ones of the location of your will, so they can access it easily after your passing.

 

6: Review and update your will

Finally, it's important to review and update your will regularly. Life changes such as marriage, divorce, births, deaths, and changes in financial circumstances can all impact your estate plan. Review your will every few years or after major life changes to ensure that it still reflects your wishes.

 

Conclusion:

Making a will for your property is one of the most important things you can do to make sure that your assets are divided the way you want after you die. By taking these important steps, you can make a legal document that gives you peace of mind and protects your loved ones' interests. Don't forget to think about what you have. 

What Is a Will: Your Guide to Last Will & Testaments
Wills / Trusts

What Is a Will: Your Guide to Last Will & Testaments

A last will and testament, as the name suggests, is a legal document that expresses a person's final desires as stated before his death. The Last Will and Testament is a legal document written by a person known as the testator that specifies how his property will be distributed, as well as his wishes for managing his accounts and interests and the custody of his minor dependents.

What does it consist of?

It is not necessary for a Will to follow any particular format or use particular words. The intention of the testator to make dispositions of his or her property that take effect after his death must be disclosed in the instrument, nevertheless. It will therefore consist of the following:

  • the selection of an executor to handle the estate's administration.

  • The testator's property or assets.

  • Property or assets that will be left to heirs through a charitable trust or another arrangement, as well as the distribution percentage.

  • Minors who share treatment until they are legally allowed to inherit it are taken care of by the testator.

  • Remaining asset allocation under the residual clause.

Execution

Choosing an executor is done only for the purpose of carrying out a will. The executor will be given the authority to oversee the proper execution of Will's provisions. The executor is in charge of managing the testator's estate.
 

In the event that the testator fails to name an executor in the will, the legal heirs may name an administrator to carry out the executor's duties.

 

The probate of a will is required in various states. The executor or legal heirs must petition to the district court for the will's probate in those places where it is required. The judicial division that deals with wills, estates, conservatorships, and guardianships is known as the probate court.

 

Laws governing the last Will and Testament?

The Indian Succession Act of 1925 governs the last will and testament. Under the Indian Registration Act of 1908, a will may be registered with the Sub-Registrar of the testator's locality. The Will does not have to be registered. However, it is advised to have a will registered so that it cannot be contested after the testator's passing.

Valid Will

For a will to be deemed legitimate, certain conditions must be met. It is equivalent to passing away without a will if it is not deemed valid by the court. The conditions are:

  • Legal age: In order to create a will, the testator must be of legal age. The majority of states view 18 as the legal age.

  • Testamentary capacity: The testator must be of sound mind, meaning he must be aware of the effect his will will have and comprehend why he is creating it.

  • Intention: A person has the intention to create a will if, at the moment the document is signed, they intend to make a revocable property disposition in the case of their passing.

  • Wills must be made voluntarily; they are invalid if they are coerced.

  • Disposal of property in a proper manner: Family and friends must dispose of property in a proper manner.

  • A will must be signed, dated, and witnessed for it to be legally binding. Witness signatures are also required. The number of witnesses will be determined by local legal requirements.

Effects of not having a will or testament

Intestate succession occurs when a person passes away without leaving a legally binding will. When someone passes away intestate, their possessions and assets are divided in accordance with personal laws.

 

When a Hindu dies intestate, that is, without creating a will, the Hindu Succession Act, 1956, specifies how assets shall be distributed. Muslims in India are governed by Mohammedan Law. A Muslim's estate should be distributed in accordance with Mohammedan law. Christians and Parsis who pass away without leaving a Will have their possessions allocated in accordance with the Indian Succession Act, 1925.

Different types of Wills

  1. Unprivileged Will: A will made by a person who is not a mariner at sea, a soldier working on an expedition, or a soldier involved in actual combat is referred to as an unprivileged Will.

  2. Privileged Will: In order for an privileged will to be enforceable, it must meet the requirements listed below:

    1. The Will's writer must sign it or else put his or her signature on it.

    2. The testator's signature or mark must be positioned in a way that makes it clear that it was meant to give the writing its legal status as the testator's will.

    3. The will needs to be witnessed by two or more people.

  3. Conditional Wills: Wills that are conditional or contingent upon other events can be written such that they only come into effect if certain requirements are met.

  4. Joint Wills: A conjoint will is a type of will that can be made by two or more people. A joint will would not be enforceable during either party's lifetime if it were intended to take effect after their deaths.

  5. Concurrent Wills: Concurrent Wills are one person's written wills in which, for convenience's sake, two or more wills specify how to dispose of property.

  6. Mutual Wills: Wills that are mutually beneficial to both parties are called mutual wills.

  7. Duplicate Wills: A testator may make a duplicate Will for security or safekeeping with an executor, trustee, or bank.

  8. Sham Wills: A sham will is a will that has been executed under the guise of a will but is deemed invalid because the testator did not intend for it to be carried out in the manner intended.

Conclusion

Indian Succession Act of 1925 regulates last will and testaments. The Sub-Registrar of the area where the testator resides is where a will can be registered under the Indian Registration Act, 1908. The registration of the Will is optional. If a person's heirs are dissatisfied with the shares assigned to them, they typically contest the will. The most frequent justification for contesting a will is that the testator was not of sound mind when he or she made the will. As a result, it is important to be clear in the will when dividing up the property.

What Does the Succession Law Say?
Wills / Trusts

What Does the Succession Law Say?

We have been through a tough time of Covid Lockdown recetnly and now in a new year of 2023, perception prevails that life is uncetain and planning sucession of property should be a critical aspect of our overall planning.  We will end up with a number of different properties during the course of our life. When combined together, all of these different pieces of property make up our estate. When we pass away, the people who will inherit our estate must found appropriately planned succession documents. If not, it will be left in what is known as a "ownerless" estate.

As a consequence of this, when we pass away, the people who come after us will become the legal proprietors of our estate. Inheritance or succession are common names that people use to refer to this process. When we are no longer here, those who will inherit our property and possessions are known as our successors. The entire process is governed by a body of law known as succession law, which you may read more about here. The idea of inheritance is not synonymous with the concept of succession. Inheritance refers to the process by which a person receives the property that was previously owned by his or her ancestors. The inheritance is distributed in accordance with a predetermined order, which is established by the succession. In order to conform with the criteria of Indian Succession Law, one will typically need to obtain a succession certificate. It is necessary for the individual who obtains the Succession Certificate to offer credible evidence that they are the rightful heir to the estate in order to satisfy the requirements of the certificate.

 

Types of Succession

Succession is of two types: 

  1. Testamentary Succession. 

  2. Intestate Succession. 

After your death, the succession of your estate will be either testamentary or intestate. It cannot be both at the same time. If you have left behind a Will, the succession of your estate will be testamentary. Otherwise (that is, if you have not left behind a Will), your estate's succession will be intestate. 

 

Testamentary Succession

Testamentary succession is nothing more than executing a will. A will would then govern how your property is distributed among your legal heirs. A will includes the following information: 

a) Who gets your estate 

b) How is your estate distributed among the various heirs? 

Persons named in your will are your legatees. You can choose anyone to be your legatee. It is not required that a legatee is your relative. Wills are recognized under the Indian Succession laws.

The Indian Succession Act, 1925 governs the making and enforcing of Wills. It is the law which governs testamentary succession in India. Indian Succession Act, 1925 applies to everyone, except Muslims. Muslims are governed by their own personal laws. A Will gives you freedom to distribute your property according to your wishes.  However, if you are a Muslim, you cannot bequeath by a Will any more than 1/3 of your estate unless your legal heirs' consent to exceed this cap. There is no such limitation for anyone else.

You can execute your Will in accordance with the Indian Succession Act, 1925, if you are not a Muslim. If you are a Muslim, you have to execute your Will according to the Muslim personal laws. Capture the will in writing and sign it. You can also affix your thumb impression on the Will. Two witnesses need to attest the Will. These witnesses should have seen you sign the Will. A Will can be executed on plain paper. A Will need not be executed on a stamp paper. It is also not necessary to be registered.

Muslims can execute their Wills through a far easier procedure. Your Will need not be signed or written. It can even be oral. There is no need for attesting witnesses. You need to make your intent clear through your Will. However, oral wills are difficult to prove. Hence, It is preferable to capture your will in writing. 

After one passes away, a person should be made responsible to execute the will. Typically, lawyers are given this responsibility.  When another person implements the instructions given in the Will of a deceased, it is called executing the Will. The person who executes the Will is called an executor. Executors take care that the estate is distributed in accordance with the Will. There can be multiple executors. You can choose one person or more than one person to act as executors of your Will.  Remember to take their consent. Choosing an executor should be a careful process. If you don't appoint an executor, or the executors refuse to act as executors after your death, the competent court can appoint some of your legal heirs as the executor[s].

 

Intestate Succession

If you die without leaving a Will, your property would pass on through Intestate succession. Laws governing intestate succession in India are not uniform. You are governed by the personal law of your religion. 

Various religions in India are governed by a variety of varying laws of intestate succession. For example, the Hindu Succession Act of 1956 is the law that regulates the intestate succession of Hindus. The Indian Succession Act of 1925 is the piece of legislation that regulates the intestate succession of Christians. Hence, the Hindu Succession Act, which was passed in 1956, will apply to you if you are a Hindu; if you are Christian, the Indian Succession Act, which was passed in 1925, will apply to you; and so on. Although the rules that govern many religions are not always the same, the fundamental requirements of every law are the same. There are going to be some new people who own your estate when you pass away. These individuals are considered to be your lawful heirs.

Each legal heir will inherit a specific share of your estate. The applicable Law of Intestate Succession will hence specify both your legal heirs and the shares of your estate each legal heir is entitled to inherit.

Take, for example, the situation of a married Hindu male. If you are a married man in the Hindu religion, your wife, any sons or daughters you may have, as well as your mother, are your legal heirs. They will each take an equal portion of the estate you leave behind. In the event that you pass away and leave behind a son, a daughter, and a wife, each of them will be entitled to an equal portion of the inheritance. If your daughter has already passed away but is survived by her own daughter, then your grand-daughter will also have a right to the property because of her mother, who was also a previous owner.

People Also Read This: Know About Inheritance Rights in India

Hindu Law of Succession

The Hindu Law of Succession is contained in the following three sources: 

  1. The Indian Succession Act, 1925, which governs the testamentary succession of the estate of a Hindu. 

  2. The Hindu Succession Act, 1956, which governs the intestate succession of the estate of a Hindu. 

  3. The succession of Hindu Joint Family Property, in almost the whole of India except some eastern regions, continues to be governed by ancient religious rules. This is quite a small portion of the Hindu Law of Succession. 

Succession in Hindu Law makes a distinction between two types of Property: (1) Joint Family Property and (2) Self-Acquired Property. In almost all parts of India except portions of the eastern region, the rules of succession governing Joint Family Property, and Self-Acquired Property, are different.  

The Hindu Succession Amendment Act of 2005 has now started giving daughters also succession rights. 

Those who read this Article also Consulted a Lawyer about Succession and Wills. 

The Indian Succession Act, 1925

The Indian Succession Act 1925, is one of the oldest Indian statutes governing succession. It governs intestate succession for Christians, Parsis, and some other religions. 

However, the Indian Succession Act is special for two other reasons. 

  1. It is the uniform law that governs testamentary succession for all religions except Islam. Hence, unless you are a Muslim, the entire process of preparing and executing a will, beginning from you authoring it to your wishes in it being carried out, will be governed by the Indian Succession Act, 1925. 

  2. Even in cases of intestate succession controlled by other religious laws, the Indian Succession Act has a role to play in some respects. For instance, the Act contains the procedure for appointing administrators for your estate. Administrators are responsible for distributing your estate to your legal heirs. Another important function is, succession certificates are issued under the Indian Succession Act. A Succession Certificate issued to a particular person will establish that they are entitled to succeed as a part of your estate.

Conclusion:
 

In conclusion, succession laws play a significant role in ensuring that a deceased person's property is distributed to their heirs in a manner that is both equitable and compliant with the law. Even though the rules may change from country to country or state to state, it is critical to have an understanding of how they operate in order to avoid disagreements and misunderstandings over the distribution of assets. If you want to make sure that your assets go to the people you want them to when you pass away, it's necessary to seek the guidance of an attorney and have a will that's been drawn up carefully. If you are familiar with the laws governing succession, you will be able to make well-informed choices and plan effectively for the future, which will provide you and your loved ones more peace of mind. 

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