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Succession Planning: A comprehensive guide on Will making

Succession planning or inheritance planning is a process by which you can pass on your property, assets, and other possessions to the next generation. A will is a legal document summarising your choice to distribute your property and assets after your death by appointing beneficiaries and guardians for minor children, as the case may be. So, leave a clear and detailed will or testament outlining your decisions. This article outlines the steps for a comprehensive will, including the steps, documents, and other essential points to remember.


Necessary terms related to the Will

There are certain parties involved in the Will which are as follows:-

1. TESTATOR – He is the person who writes the Will or whose property is being distributed to the concerned person

2. EXECUTOR– The executor is responsible for carrying out the instructions in the decedent’s Will, according to Section 2(c) of the Indian Succession Act. If the deceased has not appointed an executor, the court appoints an administrator who will look out for all the executor’s responsibilities.

3. LEGATEE– A legatee or beneficiary is the person who ultimately gets the benefit as stated by the Testator in his Will.

4. PROBATE– Section 2(f) of the Indian Succession Act defines probate as the certified copy of the Will with the court’s seal. It shows that the Will is genuine and acts as evidence if there arises any dispute

5. HOLOGRAPHIC WILL– It is also known as a handwritten will. In India, this type of Will is preferred as every person has their writing style, so it is easy to identify whether it is genuine or fake. 

What are the essential elements of a valid will?

There are various essential elements of an Indian will as per will law in India which the Indian Succession Act, 1925[1], lays down and they are as follows:

  1. Every person who writes a will must be of sound mind and above 18. This bars people of unsound mind and minors from drawing a will.
  2. Any person incapable of making a valid judgment or in an inebriated state of mind because of intoxication or illness where he cannot understand the consequences of his acts is not allowed to draw a valid will.
  3. Any provision of a will that was compelled to be written or persuaded to be made through coercion, threat, or other means is void and unenforceable under the law.

What are the steps for Will Creation?

  1. The Testator must first go to the sub-office registrars in the area where they reside or where most of the estate is located to record a will. The original Will is made more reliable and trustworthy by the Testator’s physical attendance before a government official.
  2. The Will may not be disclosed to the Testator’s contemporaries for privacy or security reasons, but it can be recorded at any time due to its delicate nature. Thus, unlike other papers that must be registered within four months after the date of execution.
  3. While filing the document, One should carefully review it to ensure no legal omissions.
  4. After the Will has been reviewed, a date is set in the sub-registrar office for enrollment.
  5. It costs money to record with the nominal government, which varies from state to state.
  6. The Testator should ensure he travels to the Sub-office Registrar with at least two attesting witnesses.
  7. The Recorded copy of the Will is available for pickup following the procedure in one week.

What are the components of a Will Registration?

There are four essential components to a will, which are as follows:

  1. Executor

An executor is a person who is responsible for taking care of your property and assets after your death. This includes ensuring that your assets are distributed according to your wishes in drafting a will. The executor must also ensure that all debts and taxes the decedent owes are paid and that any legal matters related to the estate are resolved.

  2. Beneficiaries

Beneficiaries are individuals who receive your property and assets after your death. It is essential to name your beneficiaries in the Will to avoid any confusion or disputes among family or friends. If you have minor children, it is also essential to name a guardian for them in the Will.

  3. Assets

Assets are the property that you leave behind after your death. This includes any real estate, money, personal property, and investments. It is crucial to list all of your assets in the Will and to be specific about who should receive each asset.

 4. Signature

The signature of the Testator is an essential component of the Will. It confirms the document’s validity and ensures that it is legally binding. The Testator must sign the document before two witnesses who can attest to the Testator’s signature.

What are the documents required For the Registration of a Will?

To complete the will registration process and receive the final attestation, a few specific documents must be submitted and validated by the sub-registrar. The Indian Registration Act of 1908 governs registration. A will must be registered in the sub-registrar’s office in the jurisdiction of the residence of the person making the Will. These are as follows:

  • The documents required for will registration include two passport-size pictures of the Testator. 
  • The documents required for will registration include a certificate from an MBBS/MD doctor in written form verifying that the Testator is mentally sound and fully capable of making decisions.
  • The documents required for will registration include the original copy of a will that the Testator signs.
  • Two witnesses should be present during the registration to sign. They also must carry their passport-size photographs, which will be stated as the documents required for will registration.
  • ID proof of the Testator and two witnesses must be included in the documents required for will registration.
  • Residential proof of the Testator.
  • Pan cards of the Testator and the witnesses are the essential documents required for will registration.

What is a Probate of Will in India, and what is the procedure?

‘Probate’ means to vouch for or validate. It is a process wherein the court officially recognizes the Will as the Testator’s final and genuine Will. Indian Succession Act of 1925 states, “Probate of will, when granted, establishes the will from the death of the testator, and renders valid all intermediate acts of the executor as such.” It means that when a Will is probated, it becomes legally recognized with a court seal and gives the executor the power to distribute the Testator’s assets according to their value and settle debts and creditors out of the estate.

Procedure for Will Probate?

The procedure for probating Will is divided into four simple stages:

  1. The first step involves applying to the District Judge through a probate petition which must be duly signed and verified by or on behalf of the applicant. The probate petition should be in a prescribed format under the Code of Civil Procedure, 1908, and shall be done after seven days of the Testator’s death.
  2. The second step is to send the application to the High Court, under whose jurisdiction the property falls. Then a lawyer shall prepare the application; in some cases, the lower court can also accept the application.
  3. One must submit certain documents verifying the genuineness of the Will, death certificate, and other documents. These will prove that the Testator had free Will.
  4. When the court receives the application, it verifies all the details. Then it invites the nearest kin of the deceased to claim the probate. Finally, it showcases the invitation letter at prominent places for the invitation of any objection. The probate issuance is complete if the court files no objection after 30 days.

What is a Succession Certificate?

A succession Certificate is a certificate the Courts in India grant to the legal heirs of a person dying intestate, leaving debts and securities. A person is said to have passed away intestate when they do not leave a legal Will. This document, under the Indian Succession Act and issued by a competent civil court, essentially certifies the rightful person to be the successor of the deceased person. A succession certificate ensures the transfer of any assets, debts, or securities to the legal successor of the deceased person. These assets might include Mutual Funds, Insurance, Pension, Retirement benefits, Government undertakings, Bank Balance, etc.

Documents Required for Succession Certificate

  1. The time of the death of the deceased person.
  2. Address of the deceased person at the time of death. 
  3. Details of properties of the deceased person. 
  4. Complete details of the family of the deceased person.
  5. Complete details of all the legal heirs of the deceased person.
  6. No Objection Certificates from other legal heirs.
  7. Rights of the person petitioning for a succession certificate.
  8. Lists of assets, debts, and securities of the deceased person.

What is the procedure for applying for a Succession Certificate?

Step 1: To File a Petition

The legal heirs of a deceased person should file a petition to claim ownership of their assets. Under the relevant jurisdiction, this form should be completed in the authorized format and submitted to the civil court after verifying it. The petition should also include a copy of the death certificate. The petition should mention the details written below clearly:

  • The date, time, and place of death of the deceased
  • Details of other legal relatives or heirs of the deceased
  • A description of the residence or property of the deceased that fell within the jurisdiction of the judge at the time of death
  • Petitioner’s rights
  • Any missing impediment to the grant of a certificate
  • Identification documents such as Ration Cards or Passport
  • List of the securities or debts for which the certificate is applied for.
  • A No Objection Certificate (NOC) from other legal heirs.

Step 2: To Submit the Fees

The court imposes a specific percentage of the estate’s value per The Court Fees Act 1870. The petitioner has to pay this value in Judicial stamps. 

Step 3: To Publish a Notice in the Newspaper

The court then examines the petition and publishes it through a national newspaper. The public can raise objections, if any. Also, the court notifies all other heirs and respondents. The petition has to be attached with the required documents to support such a claim. 

Step 4: To Receive a Certificate

If there are no claims to the ownership of the deceased person’s assets within 45 days, the court grants the petitioner the succession certificate to authenticate the established claim. The court issues a joint succession certificate in case there are multiple petitioners. However, the court issues only one certificate for a single asset. 

Step 5: To Sign the Indemnity Bond

Ensure no losses occur due to the misuse of the granted succession certificate. Sometimes, the judge may ask the petitioner to sign an Indemnity bond. The petitioner may have to present some kind of security to the court when signing this bond.

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FAQs related to Will registration:

  1. Can a Testator change the entire Will after executing the same?

A testator can change the entire Will whenever he wants and in any way, he deems proper. Anyone legally capable of doing so may apply for will registration; however, if the applicant needs to gain the necessary competence, the will registration submitted online is deemed void and unenforceable. Human life is a gradual occurrence since circumstances are constantly shifting. As a result, their Wills need to be updated to reflect the new circumstances. Sometimes the Testator is in a position where minor errors will only need a simple update in the form of a supplement; on the other hand, if the error is significant or there has been a significant change in the circumstances under which the previous Will was drafted, the Testator must completely write a new will.

The Will should be updated every four to five years, and you should stay in touch with your attorney to seek knowledgeable counsel.

  2. If the Testator only wants to make a few changes in the Will, Is it possible?

A codicil can be added to a will if the testator wants to make a few adjustments without altering the entire document. Similar to how the Will is carried out, so too is the codicil. It is important to remember that a will or codicil cannot be changed or revoked. They are always subject to change or revocation.

3. Can a Will be registered even after the death of a Testator?

Even after the Testator has died, a will registration already signed by both parties and witnessed can still be recorded. Claimants must appear before the sub-registrar office with the Testator’s death certificate, an original copy of the Will, and witnesses in attendance.

4. Who can get access to the registered Will?

As per Indian Laws, not everyone is allowed to see the registered Will, only the following persons are allowed to see their respective wills: 

  1. Testator himself by requesting the sub-registrar office
  2. After the death of the Testator, his legal representatives and the executor can procure the registered Will by applying to the sub-registrar office, and only after due verification are they allowed to procure the Will.

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