WILL CODICIL PROBATE & ESTATE MANAGEMENT
We are a dedicated team to make sure that your Estate, Property and allied assets are properly managed as per your wishes (even post your demise) through proper adjudication, Probate and execution of your Will.
WILL
As individuals we attempt to form sure that our lives have led a meaningful path hence within the course of our living, we create / purchase and or develop assets. But what happens to those assets post our death, can we during our living make sure how our assets should devolve and who should it devolve to?
Well, the answer to that is in the affirmative, a person can certainly make sure how his assets or property shall devolve and who shall it devolve to, post his / her death, via a simple yet powerful document known as a ‘Will’.
Just like the phrase ‘will of a person’ means the ‘intention of a person’, the document Will means the intention of a person writing his Will to make sure that his assets / properties are distributed as per the intention and wishes of the person. A Will is a written intention of the person making it, with respect to his property and is a legally valid document. The person making a Will is known as Testator and the distribution that takes place post the death of the Testator in accordance with the Will is known as Testamentary Succession. If a person dies without making a Will, his property / asset would be passed over as and by way of intestate succession, which may add to complication amongst the various potential heirs. Hence, it’s preferable that one should make a Will.
The Indian Succession Act, 1925 governs testamentary and intestate succession and is applicable to all Wills of Hindus, Buddhists, Sikhs and Jains throughout the territory of India. Section 2(h) of the Indian Succession Act, 1925 defies a Will as ‘a legal declaration of the intention of the Testator with reference to his property which he desires to be carried into effect after his death.’ A Will is a therefore a unilateral document that is made during the lifetime of a person and the Will takes effect only after the death of the person making it and is an instrument by which an individual makes a disposition of his property to require effect after his death.
The person who is designated to execute a Will of a Testator is an Executor and the person(s) receiving any benefits from a Will are known as Legatees or in common parlance as Beneficiaries. So can a Testator make only one Will during his lifetime? Well, a Testator can make numerous Wills during his lifetime and the last made Will before death shall be the recognized and executable Will.
Does a WIll need to be made in any prescribed form? The answer to that is in the negative for a Will can be made like a normal document and does not need or warrant a specific format. Further, a Will are often drafted in any language conversant in the Testator as long as which will is unambiguous and clearly speaks out the intention of the Testator as to the beneficiaries of his properties. Further, a Will needs to bear the initials of the Testator on each page and full signature on the execution portion on the final page, which would be attested by two witnesses that saw the Testator execute his Will, to form the document genuine within the eyes of law.
Does an executed Will need to be registered and stamped? The law does not warrant a Will to be registered however, a Will that is registered with the local registrar/ sub-registrar by the Testator himself evidences the genuineness of that WIll. Further, there is no stamp duty to be paid on a Will.
Can a Will be revoked / cancelled? A WIll can be revoked / cancelled at any time by the Testator as long as he is mentally and legally competent to dispose of his property. As stated above, an earlier Will can be revoked / cancelled by executing and registering a new Will (in case the old Will is registered) or simply by destroying the old Will.
CODICIL
Can a Will be amended / altered? Yes, Wills are often amended / altered via an instrument referred to as a Codicil. As per section 2(b) of the Indian Succession Act, 1925 a ‘Codicil means an instrument made in relation to a Will, and explaining, altering or adding to its disposition, and shall be deemed to form part of the Will.’ In other words, a Codicil is a document through which an existing Will or a particular clause of that Will can be altered or even explained and the Codicil would form part of and be read together with that Will.
Since a Codicil would form part of a Will, that Codicil should give reference to the Will where the interpreting and explaining provisions would exist. A Codicil can be further altered by another Codicil however the last document should bear reference to the prior document in order to avoid confusion
A Codicil would also have to bear the initials of the Testator on each page along with final execution and be attested by two Witnesses.
PROBATE
So upon the death of the Testator how do his properties devolve? On the death of the Testator, the Executor needs to get the last Will (along with Codicil(s) if any) of the Testator certified by a Court of Competent Jurisdiction through a process known as Probate. Section 2 (f) of the Indian Succession Act, 1925 defines Probate as ‘the copy of a will certified under the seal of a Court of competent jurisdiction with a grant of administration to the estate of the Testator.’
A Probate is administered by filing a Probate Petition before the competent Court. The limitation period for filing a Probate Petition under Section 137 of The Limitation Act, 1963 is three years. Upon filing of Probate, a general notice is issued to the general public for receiving objections. If no objections are received, the granting Court will provide the Executor with a certificate of Probate as a final proof before the estate of the Testator can be devolved amongst the beneficiaries of the Will. A probate is a fool-proof way of handling divisions of complex and high value properties forming part of a Will.
ESTATE MANAGEMENT
Indians, especially Non-Residential Indians have over the years often been pressurised, traumatised and bullied over their rightful properties through illegal occupants, fraudulent transfers and much more.
Our dedicated team will make sure that you as the rightful owner of your property are duly protected from any encroachers, illegal occupants and in cases where any fraudulent transfer / sale has affected your rights, we will recover and restore your rights towards the same.
In addition to the above, we are capable enough to find out the history of the property ownership, tax implications, administration, operation and control of your residential/commercial property along with making sure that all relevant judicial and government compliances have been carried out on your behalf in order to protect and preserve your property to its best state.
We therefore not only provide efficient legal advice on the multiverse of aspects concerning your Estate including but not limited to tracing the latest and previous ownership records, providing legal assistance in finding and identifying properties. We further represent you in all matters concerning your property and allied litigation so that we are the one stop to your troubles including serving as a legal liaison between the tenants and landlords.
Therefore, from your new sale/purchase to registering the same to due diligence and all regulatory aspects of the management of your Estate, we got it covered.