How do you execute a will

Significance of Will in Inheritance

Originally, inheritance was the division or transfer of a family’s or individual’s possessions to the next generation. Unless specifically granted to outsiders, inheritance makes it possible for a family’s property to remain in the family. There are two ways to pass on inheritance:

1. Testamentary

2. Intestate

A person who writes a will is subject to testamentary succession, and by doing so, they have a choice in how to distribute their property to the beneficiaries. The testator is the person who creates a will. A will includes a maker, beneficiaries, and an executor, whose primary responsibility is to carry out the testator’s will exactly as he wrote it.

There are two kinds of property: both self-acquired and inherited. Self-acquisition of real estate is common in the modern era, largely due to the entrepreneurship and ambition that are flourishing. The importance of a will is that it allows a person to distribute their property to the people and to the extent that they wish. This creates a significant advantage for self-acquired property owners as well as in family succession. 

Kinds of Wills

In general, there are two types of wills

1. Privileged

2. Unprivileged

Privileged wills

The Act’s Section 65 addresses the execution of oral or privileged wills. Hindus are not covered by it. Only a soldier on an expedition or in actual combat, an airman on an expedition or in combat, or a mariner at sea may utilize this kind of will.

Unprivileged wills

This is covered in Section 63 of the Act, which establishes three requirements for a will’s execution, including:

1. The testator must sign or affix his mark to the will either personally or through a representative. When a representative is involved, the mark or sign must be done under the testator’s supervision and in his presence.

2. The testator’s or his representative’s signature should be positioned to make it obvious that the testator intends to carry out the Will.

3. The testator’s or his agent’s signature ought to be Two or more witnesses shall certify the will; each witness must have witnessed the testator or his representative sign or affix a mark on the will in the proper location or must have received a personal acknowledgement from the testator to that effect.

It should be mentioned that there is no specific type of attestation, and witnesses do not have to be present while another witness is attesting. 

What to Do With a Will After a Death?

When a person dies, all his or her possessions – real estate, money, shareholdings, personal belongings, etc. – become a part of his or her estate. Estate administration refers to the process of collecting and managing the estate, paying any debts and taxes, and distributing the remaining property to the heirs of the estate.

To do so, you’ll need to get the legal right to deal with their property, money and possessions (their ‘estate’). The heirs of an estate are determined by will, and if there isn’t a will, by the intestacy (which means dying without a will) succession laws applicable to you as per your religion.

We can help you apply for a grant of ‘Letter of Administration’ if you’re the ‘executor’ of the will – the person named to deal with the estate.

The law involved in making and execution of a Will 

Wills are covered in detail in the Indian Succession Act, 1925 (henceforth referred to as the “Act”). Section 2(h) defines Will as “the legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death.” In a will, the testator wishes to leave his property to the people he chooses, but only after his death, so that they can own it or enjoy it for as long as they live or for a set amount of time. An executor is designated in the will to that effect and appointed by the will for the stated purpose of carrying out his will with the intent for which it was written. Only after the testator’s passing does the Will begin to be carried out.  

According to section 74 of the Act, a person writing a will must be in good mental health. It must be attested by a minimum of two third parties to the will, regardless of whether the testator or his agent wrote it by hand. Regarding the wording of a will, Section 74 of the Act states that “it is not necessary that any technical words or terms of art be used in a will, but that the wording be such that the testator’s intentions can be known from there.” 

Process of  How to execute a will 

Step 1: Notify Beneficiaries and Family Members

Inform all surviving family members and beneficiaries about the decedent’s passing and your position as executor.

Keep the lines of communication open and give updates on estate management and the probate process, if applicable.

Step 2: Understand your role as an Executor

To learn about the wishes of the deceased, start by carefully reading the Last Will and Testament. Take note of information regarding assets, designated beneficiaries, and any special directives the testator may have left.

Managing the estate is your legal responsibility as an executor, which requires a substantial time investment. This include managing taxes, paying off debts, and allocating assets to beneficiaries. It is crucial to carry out these responsibilities in good faith, making sure that each choice and payment is in line with the Testator’s goals.

You may also think about helping to carry out these duties, depending on how complicated the estate is. As the individual assigned to this position, keep in mind that your actions should always be in the best interests of the Beneficiaries and the wishes of the Testator. 

Step 3: Employ a Financial/Legal Advisor

Think about bringing in an estate lawyer or financial advisor early on. They will be able to correctly interpret the words in the Will if there are any ambiguities. They can also guarantee adherence to legal and tax standards and offer priceless support in navigating the estate planning process.

By avoiding needless delays, professional assistance can help speed up the estate settlement procedure, which will benefit you and the beneficiaries. 

Step 4: Secure the Estate’s Assets

Whether or not there is a will, one of the executors’ most important tasks is to secure the estate’s assets. Here’s how to go about it in both situations:

If There Is a Will:

• Reference the Will and Codicils: Start by looking up the deceased’s assets in the Will. Additionally, look for any codicils, which are additions or modifications to the will that can include asset register adjustments. Codicils have the authority to add, edit, or remove prior asset entries.
• Locate and Secure Assets: Secure properties physically, maybe by replacing the locks, and make sure all bank accounts are handled properly. To protect investments, inform investment businesses and financial institutions about the death.
• Create a Detailed Inventory: Make a thorough inventory of every asset, including an assessment of its worth. This inventory is crucial for making sure that assets are distributed transparently and for Probate court proceedings if needed.
• Obtain a Probate: If there is no will (intestate), and the will was executed in Mumbai, Chennai, Kolkata, or any other city where any real estate is located:

If There Is No Will (Intestate):

• Systematic Asset Identification: Start a comprehensive search for all possible assets—bank accounts, real estate, investments, and personal belongings—without a will. This could entail looking through private records, getting in touch with banks, and speaking with relatives or financial counsellors.
• Professional Appraisal: Since there are no formal wishes, it is essential to have assets professionally appraised in order to guarantee equitable valuation prior to distribution in accordance with state intestacy regulations.
• Probate Court’s Guidance of the Succession Court: The Probate succession court is more involved in cases involving intestacy. As the designated administrator, you will distribute assets in accordance with the court’s orders and the relevant state and religious laws. 

General Guidelines for Both Scenarios:

• Meticulous Documentation: Regardless of the presence of a Will, document all assets, their condition, and value.
• Manage Ongoing Concerns: If the estate includes businesses or rental properties, ensure they’re managed effectively during the Probate process.
• Safeguard Personal Items: Secure the deceased’s personal items, as these have sentimental significance for family members.

Transparency and diligence are crucial in both situations. In order to carry out your responsibilities as an executor and ensure a seamless estate administration process, proper management and documentation are crucial. 

Step 5: Initiate the Probate Process in Probate Court

To formally start the probate process, submit the will to the probate court in your area. It’s crucial to remember that not all cases will require probate. Certain assets may avoid the probate procedure if they are jointly owned or have designated beneficiaries, such as retirement savings or life insurance. Additionally, depending on the applicable law or internal procedures established by the institutions, small estates with a total value below a specific level may be eligible for a streamlined or expedited probate process.

You will be legally authorized by the court to serve as the Executor. Receiving letters of administration or testamentary may be part of this. 

When Probate is Required

If the deceased person had property only in their name, or if there are issues with the estate, including ambiguous clauses in the will or disagreements among beneficiaries or heirs, probate is usually necessary.

Furthermore, in India, probate is necessary if the will was made in one of the three cities—Mumbai, Chennai, or Kolkata—or if any assets or property are situated there. 

Receiving Legal Authority from Government Agencies

The court examines the will once it is filed and, if everything is in order, gives you the legal right to serve as the executor. If there is a will, this is often accomplished by issuing a probate order; if not, letters of administration are typically issued.

These documents are essential because they formally acknowledge your position and provide you the authority to manage the estate’s operations, including managing properties, allocating assets, and gaining access to bank accounts. 

Step 6: Handle Taxes and Debts

One of your most important responsibilities as an executor is to handle the estate’s obligations and taxes. This is how you should approach it. 

Assessment of Debts

Determine all of the estate’s outstanding debts first. Mortgages, credit card debt, personal loans, utility bills, and medical costs may all fall under this category.

Verification of Claims

Creditors may make claims against you. Before making any payments, confirm the accuracy of each claim. This could entail going over agreements, bills, or statements pertaining to debt repayment.

Prioritise Debt Payments

Legal priority may favour some obligations over others. For instance, it may be necessary to pay off secured debts like mortgages before unsecured debts like credit cards.

Handling Tax Obligations.

File Income tax Returns

You must file the decedent’s final tax returns in your capacity as executor. This includes disclosing any earnings the deceased had before to their passing.

Estate Income Tax Returns

You might also have to file estate income tax reports if the estate makes money while it is being administered.

Working with an expert who can provide you with relevant advice is advised due to the complexity of tax legislation. They can reduce the possibility of mistakes or legal issues by assisting in the accurate calculation and payment of all tax obligations.

Never forget that you have a legal obligation to maintain thorough records of all tax returns and debt settlements.

Probate court proceedings and informing beneficiaries of the impact of taxes and obligations on the estate will both require this evidence. This prevents future misunderstandings and helps control their expectations surrounding their inheritance. 

Step 7: Distribute the Estate

As directed by the will, distribute the residual assets and estate accounts to the beneficiaries after debts and taxes have been paid.

This step may occasionally entail managing additional complicated assets or selling real estate. Here’s a methodical way to approach things. 

Understanding the Will’s Distribution Plan

• Adhere to the Will: Carefully review the Will’s instructions regarding asset distribution. Each Beneficiary should receive exactly what the Testator has specified for them.
• Consult with Beneficiaries: If the Will allows for some flexibility or if you need to clarify certain aspects of the distribution, it may be helpful to discuss these points with the Beneficiaries.

Handling Liquid Assets and Estate Accounts

• Straightforward Distributions: Liquid assets like funds in estate accounts are generally easier to distribute. Ensure accurate and fair allocation according to the Will.
• Transfer Titles and Ownership: For assets such as properties or vehicles, you’ll need to transfer titles or ownership documents to the respective Beneficiaries.

Dealing with Complex Assets:

• Real Estate and Investments: Selling properties or managing investments can be complex. If the estate includes such assets and the Will instructs their sale, you may need to work with real estate agents or investment advisors.
• Business Interests: If the deceased owned a business or part of it, the process might involve more detailed financial and legal planning. Professional advice is often necessary in these scenarios.

Documenting the Distribution Process

• Maintain Records: Keep thorough records of how each asset is distributed, including the value of assets at the time of distribution. This is important for both legal reasons and for maintaining transparency with all Beneficiaries.

Addressing Personal Property and Sentimental Items

• Personal Effects: Distributing personal items like jewellery, art, or family heirlooms can be sensitive. Handle these items with particular care, respecting the emotional value they may hold for the Beneficiaries.

Step 8: Finalise the Estate

• Accounting and Record-Keeping: Provide a final accounting to the Beneficiaries and the court, detailing how assets were managed and distributed.
• Confirmation from Beneficiaries: Get a go-ahead from all the Beneficiaries.
• Formally Close the Estate: After all tasks are completed, formally close the estate, by obtaining written confirmation or receipts from Beneficiaries as they receive their assets. This helps in finalising the estate distribution process and provides a record in case of future disputes.

The procedure to get a Will executed 

Any will is executed after the document is signed by the testator in the presence of the witnesses, ideally two but the will is to be registered through the registrar after paying the required stamp duty to register the document. A registered will is always more in approval than an unregistered Will though the latter is perfectly valid; the former is more effective in a contest before a Court of law. The execution of a Will is to be done by the executor appointed for the purpose by the testator. It is nothing but the distribution of property of the deceased according his/her intent as worded in the Will. In order to start his duties as an executor of a Will, a probate is necessary. For this to be realized, the executor should apply for probate of the Will before a competent Court.

Probate

The procedure of carrying out a will introduces the idea of probate. This is just obtaining a court’s certification regarding the validity of a will that identifies the executor and the document as legally acceptable. Section 57 of the Act states unequivocally that any wills and codicils made by any Hindu, Buddhist, Sikh, or Jaina on or after September 1, 1870, within the Bengal, Bombay, or Madras territories, as well as with regard to immovable property outside of these territories, must be filed for probate before the relevant court.

Section 57 read with Section 213(2) of the Act states that unless it is challenged in a court of law, any will or codicil made by a Hindu, Buddhist, Sikh, or Jaina on or after January 1, 1927, does not require the court’s mandatory approval to be carried out. It is important to remember that neither Indian Christians nor Muhammadans are covered by the Act’s testamentary succession. 

Procedure to apply for a probate petition

1. The full specifics of the property specified in the will, as well as the party data, should be included in the petition.

2. The petition and the will ought to be appended for the court’s review.

3. The petition should include a list of the properties listed in the will.

4. The District Court in the area where the property is located or any High Court with regular original jurisdiction will be the applicable court.

5. It should be urged that the court will declare the petitioner to have the authority to divide the property in line with the will-maker’s intentions as an executor.

The function of attorneys is to create and carrying out a will.

A lawyer’s role starts:

1. If someone asks him to draft a will on their behalf, but in accordance with their wishes and intentions

2. If he is asked to check a will’s legitimacy and search for any obvious legal flaws

3. If he needs to contest a will or file a probate petition on his client’s behalf.

4. When a significant amount of property is involved, it is generally thought to be safer if a lawyer drafts a will in accordance with the wishes and intentions of his client. 

Claims Made Against a Will

In certain cases, family members might believe that a will has not adequately provided for them. Disputes can occasionally arise amongst executors chosen by a will as well as with beneficiaries. We at Nexgen Estate Planning Solutions can assist in settling these conflicts and offer guidance on the viability of a claim against the estate.

It is crucial to remember that there are stringent restrictions on who is eligible to file a claim against a will, and professional legal counsel is highly recommended. For precise, knowledgeable assistance, see our Specialist Attorney in Wills and Estate law if you believe you are qualified to file a claim or if you are an Executor defending a claim made against the estate by someone else. 

Executor Potential Liability

It is your responsibility as an executor or administrator to handle the estate’s assets with reasonable care. Additionally, you have a duty of good faith and loyalty to the beneficiaries. The beneficiaries may file a lawsuit against you if you fail to fulfil one of these obligations. Our recommendation guarantees that the likelihood of such a claim is minimal.

Can a personal representative appoint someone else to act on their behalf?

By signing a power of attorney, a personal representative can choose another individual to act on their behalf. A power of attorney must be expressly designed to handle estate administration.

Frequently Asked Questions on How do you execute a will

Q1. What is the process for executing a will?

Ans1. The process for executing a will involves notifying beneficiaries, understanding your role as an executor, securing the estate’s assets, initiating probate, handling taxes and debts, and distributing the estate according to the will. Executors should also maintain transparency and documentation throughout the process.

Q2. What is the significance of a will in inheritance?

Ans2. A will is crucial in inheritance as it allows a person to decide how their property will be distributed after their death. It ensures that assets are passed on to desired beneficiaries, avoids disputes, and simplifies the legal process of estate administration.

Q3. What is the difference between testamentary and intestate succession?

Ans3. Testamentary succession occurs when a person passes away with a valid will, while intestate succession refers to the distribution of assets when someone dies without a will. In intestate cases, the estate is distributed according to state laws.

Q4. How many witnesses are required to execute a will?

Ans4. Under Section 63 of the Indian Succession Act, 1925, a will must be signed by the testator or their representative and attested by at least two witnesses, each of whom must witness the testator’s signature or mark.

Q5. What happens if there is no will?

Ans5. When a person dies intestate (without a will), their estate is distributed according to the laws of intestacy. This can vary depending on the deceased’s religion, and in such cases, family members may need to approach the court for succession certificates or letters of administration.

Q6. What is a probate, and is it necessary?

Ans6. A probate is a legal document issued by a court that validates a will and grants the executor the authority to manage the deceased’s estate. Probate is required when the deceased’s estate includes assets that need legal transfer or when the will is disputed.

Q7. What is the role of an executor in executing a will?

Ans7. The executor is responsible for ensuring that the deceased’s wishes, as outlined in the will, are carried out. This includes managing assets, paying off debts, filing taxes, and distributing the estate to beneficiaries.

Q8. How do you secure the assets of a deceased person’s estate?

Ans8. Securing the assets of an estate involves identifying and safeguarding properties, bank accounts, investments, and personal belongings. Executors must make a detailed inventory and may need to involve financial institutions or legal professionals for assistance.

Q9. Can a will be contested after death?

Ans9. Yes, a will can be contested by beneficiaries if they believe it was created under duress, fraud, or if the testator lacked mental capacity at the time of writing it. The contest process is generally handled in probate court.

Q10. What is the process of distributing assets from a will?

Ans10. The distribution of assets from a will involves paying off debts and taxes, followed by transferring property to beneficiaries according to the will’s instructions. This process may require legal guidance, especially for complex assets like businesses or real estate.