The Importance of Making A Will

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Copyright 2008 LawQuest. All rights reserved.
The Importance Of Making A Will

If you die without a will, there are certain rules
which dictate how the money, property or possessions should be allocated.

This may not be the way that you would have
wished your money and possessions to be distributed

Unmarried partners and partners who have not registered a
civil partnership cannot inherit from each other unless there is a will, so the death of one partner may create serious financial problems for the remaining partner
If you have children, you will need to make a will so that
arrangements for the children can be made if either one or both parents die It may be possible to reduce the amount of tax payable on the inheritance if advice is taken in advance and a will is made

DEFINITIONS
WILL
The legal declaration of a man's intentions of what
he wills to be performed after his death.

Is drafted for the implementation and distribution
of the assets as per the testators desire.

Once executed it becomes a testamentary
document.

CODICILS
A codicil is a supplement to a will which makes some
alterations but leaves the rest of it intact.

A codicil must be signed by the person who made the will
and be witnessed in the same way. However, the witnesses do not have to be the same as for the original will.

TESTATOR - the one who makes a will or a
testament.
EXECUTOR - The person or entity named in a will
who has the responsibility of carrying out the terms of the will (that is, collecting the will maker's assets, paying the debts, and distributing the remaining assets to the beneficiaries)

LEGATEE - Also known as a beneficiary. A legatee is
a person to whom a legacy is given by a last will and testament.

ADMINISTRATOR - A person appointed by a
probate court to manage and to distribute the estate of a person who has died without a will; and is distinguished from an executor of a will.

PROBATE A probate means a copy of the Will, certified under the seal of a competent Court with a grant of administration of the estate to the executor of the testator.
It is the official evidence of an executor's authority. A
probate is mandatory when the Will is executed by a Hindu, Christian or Parsi in the cities of Mumbai, Calcutta or Chennai, or pertains to immovable property situated in Mumbai, Calcutta or Chennai.

LETTERS OF ADMINISTRATION
In the event a person dies intestate or a Will does
not name any executor, an application can be filed in the courts of law for grant of probate.

CAPACITY TO MAKE A WILL
Made by a person who is 18 years old or over and made
voluntarily and without pressure from any other person

Made by a person who is of sound mind.
In writing and signed by the person making the will in the
presence of two witnesses

Signed by the two witnesses, in the presence of the person
making the will, after it has been signed. A witness or the married partner of a witness cannot benefit from a will.

CAPACITY TO MAKE A WILL (Cont)
If a witness is a beneficiary (or the married partner or civil
partner of a beneficiary), the will is still valid but the beneficiary will not be able to inherit under the will.
Although it will be legally valid even if it is not dated, a will
should also include the date on which it is signed.

CHALLENGING A WILL
A person may want to challenge the testators will because:-
They believe that the will is invalid; or

They believe that they have not been adequately provided
for in the will.

CHANGE OF CIRCUMSTANCES
When a will has been made, it is important to keep it up to
date to take account of changes in circumstances. It is advisable for you to reconsider the contents of a will must be regularly reconsidered to make sure that the will still reflects the testators wishes.

The Most Common Changes Of Circumstances Which Affect A Will Are: Getting married, remarried or registering a civil partnership Getting divorced, dissolving a civil partnership or separating The birth or adoption of children, if the testator wishes to
add these as beneficiaries in the will.

INTESTACY When a person dies without making a Will, his property devolves upon his heirs as per the laws of inheritance/succession applicable to him/her . When this occurs, the Intestates assets are frozen until a court appoints an administrator and they are then distributed according to a rigid legal formula.
Until the administrator is appointed, it is possible that no income will be available for the intestates dependants and a legal battle may follow if the distribution is contested in court.
Hence the possibility of any dispute surfacing between dependents
could be greatly reduced just by drafting the Will.


INTESTATE HINDU MALE
Equal Share of the property to be divided between each of the following persons:

Mother being alive (1 share) Widow (1 share) Living sons (1 share each) Living daughters (1 share each)

INTESTATE HINDU FEMALE Equal Share of the property to be divided between each of the following persons:
Sons
Daughter
Husband Son and daughter of predeceased son (equally together 1
share) Son and daughter of predeceased daughter (equally together I share).


INTESTATE MUSLIM
Consanguineous heirs

INTESTATE MUSLIM
Collaterals

Father True Grandfather Mother True Grandmother Daughter Sons Daughter
Full Sister, Consanguine Sister Uterine Brother Uterine Sister
Residuaries are those who are not entitled to a prescribed share, but are entitled to take the residue after the sharers take their prescribed shares. Children of the deceased or of the son of the deceased and the father of the deceased are residuaries. Male descendants of the true grandfather are also residuaries.
Distant kindred are all blood relations not being sharers or residuaries If there are no sharers or residuaries other than husband or wife the balance shall be given to distant kindred.
Unrelated successors are those who are acknowledged kinsman, universal legatee and government by escheat. In the absence of relations, the acknowledged kinsman shall succeed. In the absence of any in the group, it will go to universal legatee, and if there is none, the principle of escheat will apply.

INTESTATE CHRISTIAN
Widow / widower 1/3 of the property Lineal descendants equally to share 2/3. In the absence of lineal descendant, to all grand children, - equally In the absence of grandchildren, to great grant children equally Lineal descendant of a predeceased child or lineal descendant of a predeceased child of a predeceased child if present - division is based on equal shares, taking the predeceased child to be alive, and a downward distribution amongst the lineal descendants.

INTESTATE CHRISTIAN(CONT) With no lineal descendant:

Widow /widower 1/3 Father balance entire If Father is dead, to mother, to mother, sisters and brothers- equally

INTESTATE PARSI
Widow / Widower and Children Share Equally
Living parents-each to get a share equal to half of a Childs Share Wife and children of a predeceased son to share the share of the child as if the son died after the death of the deceased. If the child predeceased is a daughter, her share would be equally distributed to her children.

CERTAIN POINTS TO REMEMBER BEFORE DRAFTING A WILL
If the testator's intends to appoint somebody as the guardian of their minor
children, it would be wise to discuss the matter with the proposed guardian beforehand in order to ascertain whether he is genuinely willing to take on this important responsibility should the need arise.
A Will should be very specific and thus should make the intention of the person
writing a Will very clear.

The "Video Recording of the Will" and copies of CD could be made available to
concerned persons for smooth succession. This can help in hassle-free succession

CONCLUSION
Will is a private document . Amongst other things, it is
also an expression of the testator's relationship with his family members and other relatives, the testator's opinions, views, and feelings are indicated through this document. It is thus far better to make a personalized Will rather than let the impersonal rules of inheritance take effect.
A Will is the only way to make sure that the testator
can carry out wishes after his death.


CONCLUSION
Where there is a will . There is a way .
THANK YOU
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LawQuest

A New Age Law Firm

Copyright 2008 LawQuest. All rights reserved.