[ecis2016.org] Discussed in this article are the implications of an asset owner passing away without leaving a valid will, a state known as intestacy in legal parlance
According to the Oxford Dictionary, the term intestate, an adjective, indicates a condition, where an owner of assets has died, without having made a will. This legal term is widely used in the laws of inheritance worldwide.
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What is intestate inheritance?
While an asset owner can pass on his property to anyone he wishes to, keeping in view the general laws of inheritance, his assets are divided according to the legal provisions applicable based on his religious faith, in case the person passes away without leaving a will. This state of dying without a will is better known as intestate. This intestacy brings into charge the intestate inheritance laws, vis-à-vis future inheritance, since the late owner failed to provide a legal will.
It is also pertinent to note here that even in cases where the deceased has left a will, the state will first review the will through a process better known as probate, ensuring that it is valid, authentic and is applicable. This means intestate laws will also be applicable, in case the parties concerned in the matter are able to prove that the will is invalid.
The laws of intestacy will again be applicable, in case the will of the late owner can only be partially fulfilled or cannot be fulfilled at all. The same happens to be true in case the late owner has bequeathed his property for an application that could be proved illegal. Also note that if the will mentions only a nominee or an executor, without providing any specific instructions, the case will be considered intestate.
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Intestate laws for people of various faiths in India
For intestate inheritance among Hindus, Jains, Sikhs and Buddhists, property division among the legal heirs of the late owner is done under the Hindu Succession Act, 1956. Muslims, on the other hand, are governed by the Mohammedan law of inheritance. In other cases, the Indian Succession Act, 1925, is applicable.
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Succession laws also differ, based on the gender of the asset owner. This means the assets of a man may not be distributed in the same manner and form as that of a woman.
Things to remember, while preparing a Will
After the demise of a property holder, his assets are divided under the provisions of the applicable succession laws. In case an owner wants his assets to be distributed in a different manner, he has to prepare a Will during his lifetime. Although the task of creating a Will is rather simple, certain precautions must be taken while writing the same.
1. Can you write a Will on your own?
You can write your Will on a plain paper and no registration of the document is necessary, for it to be valid. You do not even need a lawyer to draft the document. Simply draft it in plain and simple language. The handwriting should be legible and the assets should be listed and distributed in a manner that there is no confusion. Also, under Section 18 of the Registration Act, you do not necessarily have to register your Will.
That said, someone who is very aged or of a frail disposition, must avoid doing the exercise on their own, as questions may later arise, with regard to the mental health of the person making the Will. Hence, the task should ideally be carried out in the presence of a lawyer.
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2. How many witnesses are needed for a Will?
To be legally valid, the Will must be attested by at least two witnesses. These witnesses must also be reliable enough, to testify for the Will once its provisions come into effect. Be acutely conscious of who you choose as the witnesses for your Will.
3. Does a Will cover all assets?
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A Will gives you the option to divide your own property as you like. However, laws in this regard are quite complex. Men belonging to the Hindu religion, for example, can write a Will for any property earned and owned by them. The same, however, is not true for a Hindu woman. As they have absolute ownership of all earned, as well as inherited property, they can will away all of it.
Typically, a Will should in no way hamper the natural order of succession. This means, in properties that you jointly inherit, you cannot transfer the rights of the share that does not belong to you through a Will.
4. Can you change a Will?
If you change your mind about the property distribution at any point in your lifetime, you could simply destroy the previous Will and create a new one. In case you had disclosed the first one, you need to follow the same process to get it cancelled.
5. When does a Will come into effect?
The provisions made in the Will come into effect after the demise of its creator and not before that. This is also the reason why the creator can get it changed anytime during his lifetime.
6. Should the contents of the Will be disclosed?
You are not legally obliged to disclose the fact that you have created a Will during your lifetime to anyone, except the parties involved in drafting and registering it. It is your personal choice, whether or not you want to make the contents of your Will known to your family members.
7. What is probate of a Will?
To make the Will legally applicable after the demise of the creator, those inheriting his assets, will have to hire a lawyer and get an order from the court that would establish its authenticity. Known as a ‘probate’, this order would also require the family members to pay a certain percentage of the assets as court fees.
FAQ
What things should be included in a will?
A Will should include the name of your executor, the assets of the executor such as bank accounts, properties, insurance policies, investments, etc. and how these assets should be divided.
Can I alter my will myself?
You can alter a Will at any time. However, if the Will has been signed by witnesses, they will have to be informed and the same process that was followed while creating the original will, should again be followed.
Can I write a Will on plain paper?
Yes, a Will can even be written on plain paper and is valid as long as it can be proven to be genuine.
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