Category Archives: Estate Planning

  • 3

‘Will of Property or Assets’

Category : Estate Planning

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What is a “Will”

As per Section 2(h) of Indian Succession Act,1925, ” A Will is a legal declaration of the intentions of the Testator in relation to his property, which he desires to be carried out and comes into effect after his death”.

 

A Will is a legal document that ensures that the intentions or wishes of an individual with respect to his assets are followed after his demise imperatively.

The absence of a Will or or the invalidity of a Will very often generates problems for the legal heirs and successors.An individual who has some property is definitely concerned about his property after his death.Therefore, there comes the benefits of having a Will. A Will  which is an important document ensures that any individual can properly leave his property whoever he choose after his death.This way he makes sure that his wishes regarding his assets & properties are followed after his death.Problems may arise when a person dies without a will or intestate.

Features of a Will
  • A Will is a legal declaration. Certain formalities must be complied with to make a valid Will. It must be duly signed and attested as required by the law;
  • The primary nature of a Will is that it comes into effect after the death of the testator.Testator means a person who dies after making a Will;
  • As per Section 62 of the Indian Succession Act, 1925, a Will is liable to be revoked or altered by its maker at any time during the lifetime of the testator, obviously when he is in a competent position to dispose of his assets by Will;
  • Lastly, there must be some property which is being given to others after the death of the testator.

Types of Will

All types are discussed below for ease understanding not going into deep.

  1. Conditional & Contingent Will: This becomes effective only after occurrence of a contingent event or incident or condition;
  2. Joint Will: Wills written or made by two or more persons jointly .But executes the Will in individual capacity separately;
  3. Mutual or Reciprocal Will: When two or more persons make a Will whereby they confer their properties to each other.Such will may be revoked by any of the testators during their joint lives with prior notice to other testator;
  4. Duplicate Will:A testator sometimes may execute a will in duplicate.One he keeps with him and the other one with a safe custody in a Bank or with a Trustee.However, both the copies must be duly signed and attested.If the testator destroys the copy retained with him it will be treated as revocation of both the Wills;
  5. Concurrent Will: Generally a testator makes one Will at a time.But sometimes for his own convenience he can make two different Wills for different properties for different geographical locations;
  6. Holograph Will: A holograph Will is a Will that is completely hand written of  the testator.This is considered to be one of the best form of Will due to its hand written nature and enhanced  authenticity;
  Advantages

Having a proper Will enjoys some great advantages too. They are discussed below concisely.

  • A testator can nominate a person as his executor to represent him legally and to fulfill his wishes regarding his assets;
  • A testator can protect his family’s financial position after his demise and may also provide his funeral instructions for the family he leaves behind;
  • The testator can specify the distribution of his estate including donations to charities & gifts to friends and close family;
  • A Will can also minimize the taxes on estate and also for the beneficiaries;
  • A Will can avoid high administration cost and finally can provide the testator a great peace of mind.

‘Happy Reading’

 

 

 

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  • 7

Hindu & Indian Succession Act

Category : Estate Planning , Home

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Hindu & In dian Succession Act:

The Hindu Succession Act was first introduced or passed by the Parliament of India in 1956.This law was enacted to enforce the laws relating to ‘intestate’ or ‘unwilled’ succession amongst the Hindus.

  • This act was further amended in 2005 by the Hindu Succession(Amendment) Act ,2005.
  • This act primarily lays down uniform & comprehensive system of inheritance and applies to both “Mithakshara” school of thought and “Dayabhaga” school of thought.We will learn about these school of thoughts later on;
  • Hindu women’s Limited Estate has been abolished by this act.Any property possessed by a Hindu woman is to be held by her absolute property and she is given full power to deal with it and dispose it off by will as per her like;
  • This Act deals with succession to Hindu male and female separately;

Applies to whom?

  • This act is applicable for the following namely;
  • any person who is a Hindu by religion in any forms;
  • any person who is a Buddhist, Jaina or Sikh by religion;
  • any other person who is not a Muslim,Christian,Parsi,Jew by religion unless it is proved that the concerned person would not have been governed by Hindu Law.
Important points to know:

The property of a Hindu male dying ‘intestate’ or without a ‘will’ would first be given to his heirs of Class I,such as;-

  1.  Son;
  2. Daughter;
  3. Widow;
  4. Mother;
  5. Son of a predeceased son;
  6. Daughter of a predeceased son;
  7. Widow of a predeceased son;
  8. Son of a  predeceased daughter;
  9. Daughter of a predeceased daughter;

Class II heirs:

  1. Father;
  2. Son’s daughter’s son, son’s daughter’s daughter, brother, sister;
  3. Daughter’s son’s son, daughter’s son’s daughter, daughter’s daughter’s son,daughter’s daughter’s daughter;
  4. Brother’s son,sister’s son,brother’s daughter’ sister’s daughter,father’s father,father’s mother;
  5. Father’s widow,brother’s widow,father’s brother, father’s sister;
  6. Mother’s father, mother’ mother;
  7. Mother’s brother, mother’s sister;

Don’t get confused.Just try to understand by drawing a family tree of all possible family members.

  • Under the Hindu Succession Act,1956 women are granted ownership of all property acquired either before or after signing of the act;
  • The property of a Hindu female dying ‘intestate’ i.e. without will would be distributed in the following order:——–
  1. Son ,daughter and husband;
  2. Children of predeceased son or daughter;
  3. Heir’s of husband;
  4. Heir’s of father;
  5. Heir’s of mother;
  • The Indian Succession Act was enacted on 30.09.1925 with a view to consolidate all Indian Laws relating to succession;
  • It is also applicable to intestate succession in case of Parsis & Christians and testamentary succession;
  • The property shall be divided in such a number of equal shares as may correspond with the number of lineal descendents of the intestate who are nearest in degree to the intestate;

Let’s take some examples to understand in a very simple manner.

Situation -1:   Akash has three children. X,Y & Z.All of them have two children each.All children of Akash are dead.Now, Akash dies. How the property would be distributed?

Answer: All property of Akash would be distributed amongst 6 grandchildren equally.Each will get 1/6^th share.

Situation -2: Now, imagine Y has no child.What would happen then?

Answer: Now, all property of Akash would be distributed amongst 4 grandchildren equally.Each will get 1/4^th share.

Situation -3:Akash has three children. X,Y & Z. X died leaving 3 children.Y died leaving 1 child and Z is alive. Now, what would  happen after the death of their father Akash?

Answer:—  1/3^rd of the property would be given to Z, 1/3^rd of the property would be given to 3 children of X and remaining 1/3^rd share would get 1 child of Y.

Situation -4: Now, imagine all children of Akash i.e. X,Y & Z are not alive and has 8 grandchildren and 2 children of a deceased grandchild.How the intestate would be distributed now?

Answer:— The intestate property would be distributed at 1/9^th share equally amongst the 7 grandchildren and remaining 1/9^th share equally between two great grandchildren.

“Happy Reading”

 

 

 

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