| December 19
What is a Will ?
“Even if you're a long way from old, don't leave the
Through this article I would like to share the details on
the commonly used tool of Estate Planning i.e. “Will” from Indian Law
point of view and especially from the perspective of "Hindu
Succession Act" and “Gift”.
What is a Gift? Who can make it?
India is a country of close knitted families and having a
lot of reasons to celebrate owing to its diversified culture, customs and
religion. Numerous occasions arise where gifts are exchanged. One can gift any
asset to the person he/she chooses to. There is No Gift Tax in India and no
limit for a gift to any person covered under the definition
of “Relative” as defined in Sec 56 (2) of Indian Income Tax Act.
As per the law as it stands today, if one receives a gift
from a person not covered in the definition of “Relative” in Sec 56 (2) it will
be treated as the income from other sources for that financial year and it will
be taxed as per the tax slab of the person receiving the gift.
However, this becomes tricky as in case of property
although there is no gift Tax but there will be stamp duty implications for
transfer of “Title” of the property in question. In Punjab there is special
exemption available for transfer of property among relatives and the maximum
amount of stamp duty payable will be INR 10,000.
No one would like to Gift their all assets during their
lifetime to their children or Legal Heirs, hence it is important to draft
What is a “Will"?
“Will” is a legal document by which a person,
the “Testator”, expresses his or her wishes as to how his or her
property is to be distributed at the time of his death. Will is one
of the simplest instruments used for transmission of assets from one generation
to next generation.
A will makes it much easier for your family to sort
everything out when you die, otherwise everything you own will be
shared out in a standard way defined by the law – which isn’t always the way
you might want and if you have children or other family who depends on you
financially then you definitely need a “Will”.
Who can be the beneficiary of a Will? Any person
immediate or distant family members or friend or an organization (like a
charitable trust or school) can be a beneficiary.
Who are the Legal Heirs? In India we have multiple
personal laws so it is important to understand which succession law will be
applicable to the “Testator” of the Will.
Hindus, Sikhs, Buddhists and Jains follow Hindu
Succession Act 1925 and amendment to Hindu Succession (Amendment)
Act, 2005. And in this post will restrict views on the above.
Who are the Legal Heirs if a person dies Intestate under
Hindus Succession Act?
The Class I heirs of a Hindu male are:
- Mother (of the deceased person)
- Son/Daughter of a pre-deceased son
- Son/ daughter of a pre-deceased Daughter
- Widow of a pre-deceased son
- Son/ daughter of a pre-deceased son of a pre-deceased son
- Widow of a pre-deceased son of a pre-deceased son
The Widow, mother and each of the children (son or
daughter) takes equal share. Where one or more of such sons or daughters is no
more (have already passed away), then the Class 1 heirs in that branch will all
jointly share that son/daughter(s) share in the estate.
Is it compulsory to a name an Executor to the
Will? No it is not compulsory to name an Executor in the Will, but it
is advisable to name an Executor in the Will. In case there is no Executor
named in the Will then in that case beneficiaries have to approach the court
for naming a executor and after that the execution of the Will can take
Is Registration of the Will Compulsory in
India?" It is not compulsory to register a Will as there is no Law
which specifies registering as a requirement of a valid Will. The Indian courts
have in the past given their Judgments upholding the unregistered Will as valid
Will. In case one wants to register a Will one has to go to a sub-registrar
office for registration of the Will.
How can one revoke or change one’s Will? During
their lifetime as long as the “Testator” of the Will is of Sound mind and is
competent to make a Will, the Testator can revoke his earlier Wills by writing
a new Will and destroying the old original Will or by making a Codicil to the
Testator is free to change his/her Will as many times as
they want. It is advisable not to change the Will too often or to have multiple
Wills in place. It is important that in a new Will one mentions the revocation
of all earlier Wills and also destroys original and copies of all earlier Wills
to avoid confusion and dispute in the Future. In case there are multiple Wills
and there is contest to the Will among the Legal heirs of the Testator then the
Legal Heirs have to approach a competent court and the Court will decide on the
facts of the case which is the Last Will.
One should update or change the Will whenever there are
significant changes in their asset profile or their wishes in terms of the
share of different beneficiaries under the Will.
What is a Probate? Is Probate compulsory in India? A
Probate is an administrative order that is given by a competent court and it
certifies that Will (including Codicils, if there are any) that is attached to
the Will, has been proved in the relevant court. Further, the Probate gives the
right to the Executor to transfer the assets to the respective beneficiaries as
per the direction of the Will.
Is Probate Compulsory in India? Obtaining a Probate
of the Will is compulsory only for people living in the High Court jurisdiction
of Chennai, Mumbai or Kolkata Or if you have a immovable property in the above
mentioned jurisdiction. For people in all other jurisdictions Probate is not
compulsory. Probate may also be required if:
- In case of dispute between the legal heirs OR
- if a person dies intestate and he/she owns immovable
property in his/her name either in single name or in joint name OR
- For NRIs/ PIO/OCI if in their overseas Wills they have
mentioned about Indian assets and they are required to obtain a Probate in
their country of residence or citizenship OR
- NRI/ PIO/OCI if they want to repatriate the money out of
sale of assets in India OR
- The Will belongs to Europeans, East Indians, Armenians,
Jews, Indian Christians and Parsis