Drafting of will/probate/family area

1.What is Probate ?

Probate is the court-supervised process of verifying a deceased person’s last legal will and testament. It entails discovering the value of the deceased’s assets, paying their final debts and taxes, and distributing the estate’s remaining assets to its appropriate beneficiaries. Probate is a legal procedure for distributing a deceased individual’s assets where a probate court oversees the process. This court has the legal competence to decide wills and estates matters.       

The court will evaluate if the will is valid during probate. They’ll also designate an executor, find and value assets, and use the estate to settle the decedent’s bills. The remainder will be dispersed to the decedent’s heirs and beneficiaries.

Working of a Probate: A Probate of will is essentially a procedure for court which helps in the process of will approval. A will’s probate is officially certified by the court in respect to the Indian Succession Act, 1925. This legal procedure provides the opportunity to distribute the estate property to heirs or beneficiaries of the deceased. Paying of debt is also made easier through the workings of a probate. 

How does the Last Will and Testament be authenticated: Submission of required documents such as address proof, photographs, along with witness signatures are essential or the will and testament to be authenticated. Death certification of the deceased is also required for some cases. Although registration of will is not compulsory in India and depends on the testator’s (maker of the will) choice. 

2.What is a Will?

Drafting of will is necessary since it’s a judicial document that outlines your desires for property distribution and the care of any minor children. Those wishes may not be fulfilled if you pass away without a will. Furthermore, your descendants may end up spending more time, money, and emotional energy after you pass away to settle your affairs. It will vary in efficiency depending on the kind, but no document is likely to resolve every difficulty that emerges after your death.

Why should one have a will?

Some people believe that wills are only necessary for the highly rich or those with complicated holdings. There are, nonetheless, numerous compelling reasons to have a will.

• You have complete control over who receives your assets. You have complete control over who gets what and how much.
• You can protect your possessions out of the hands of persons you don’t want them to come into contact with, like an estranged relative. 
• You can decide by whom your children will be looked after. The courts will determine if there is no will.
• Your heirs will be able to access your assets more quickly and easily.
• You can prepare to save money on taxes for your estate. You can also make gifts and charity donations to reduce your estate tax liability.

Which will is the best one?

Create a testamentary will to increase the chances of your requests being fulfilled. The most common sort of will is when you draught the document and then sign it in the presence of witnesses. It’s arguably the most acceptable way to protect yourself from successful challenges to your wishes by family members or business associates after you pass away. You can draught one yourself, but for added security, have it written by a trusts and estates attorney.

What things does a will cover? 

Drafting will specifically allow you to know your assets, such as bank accounts, real estate, and valuable goods, should be divided. If you own a business or have investments, you can specify who will receive them and when in your will. You can also give your direct assets to a charity (or charities) of your choice through a will. A will law can also ensure that your wishes are followed out if you wish to leave assets to an agency or an organisation. 

While a will usually protect the majority of your assets, it doesn’t cover everything. Pay-outs from the testator’s (a person who has made a will) life insurance policy are among the exclusions. Because the policy has named beneficiaries, the proceeds will be distributed to them. The same is likely to be true for any investment accounts with a “transference upon dying” designation.

Suppose the recipients of those assets predecease the testator. In that case, the policy or fund returns to the estate and is dispersed according to the terms of the will or, if that fails, by a probate court— a branch of the judicial system that deals with wills, estates, and associated problems. A legal will not only direct your possessions, but it also specifies who should be appointed guardian of your young children in the case of your death. 

What Happens if You Pass Away Without Leaving a Will?

If you pass an intestate without a will, the state is in charge of distributing your assets, usually according to a predetermined formula. The formula frequently results in half of your wealth going to your partner and the other half going to your children due to the elective-share and communal property clauses. 

In some instances, such a scenario leads to the sale of the family house or other assets, which can be detrimental to a surviving spouse who relied on most of your assets to maintain their quality of life. If your children are minors, there may be further issues because the court will designate a representative to serve their interests. 

How to Draft a Will and Have It Validated?

Draft a will deed may not always necessitate expert assistance. Several software tools and other Custom websites are accessible to assist you if you are comfortable taking care of the task on your own. After you’ve completed the document, it must be witnessed by two adults of sound mind who are familiar with you. 

A witness to your will can be anyone, but it’s ideal to choose an impartial witness who isn’t a recipient and has no financial or personal involvement in your decisions. In some states, two or more witnesses are required. If a lawyer wrote the will, they should not be one of the witnesses.

A will must be notarized in some places, so verify the requirements where you live. Even though it’s not needed, you might want to have your witnesses sign a self-proving affidavit. The document, which must be signed in the presence of a notary, may speed up the probate procedure by lowering the number of witnesses who must appear in court to verify their signatures.

3.Probate of a will?

A will is a formal document that outlines a person’s intentions and wishes, and it must be carried out after their death. The testator is the person who creates the will, and it can only be reversed during their lifetime. The Indian Succession Act of 1925 defines probate as a copy of a will attested underneath a court of competent jurisdiction with a provision of the testator’s estate management. 

A person who writes a will declares their wishes for the will to be carried out after his death by the people listed in the will. The executors of a will are the people appointed in the will to carry it out. Only the executor of the will is eligible for probate. If the will includes immovable assets in various states, it is required. Probate is solid evidence that a will was executed correctly and is authentic.

What circumstances necessitate the filing of a probate petition?

Probateis required under the Indian Succession Act 1925 if the following conditions are met:

• A will within the state of West Bengal’s geographical boundaries and the municipal boundaries of the metro cities of Chennai and Mumbai.
• If the will is written by a Hindu, Jain, Sikh, or Buddhist, the law mentioned above of compelled probate applies.
• It’s worth noting that the preceding rule only applies to wills that don’t include any immovable possessions.

Though probate of the will is not required in all other circumstances, it is recommended to get probate if the legality of the will is likely to be contested in the future on any basis.

The cost of getting probate varies by state and is determined by the District Court. The fees are calculated depending on the cost of the assets that are the subject of the petition. In addition, to court fees, the petitioner is responsible for attorneys’ fees. The deceased’s estate will cover these expenses.

4.Is a probate mandatory?

No, not all wills require obtaining probate. On the other hand, having probate has several benefits and a legal requirement in some situations. In circumstances of sibling rivalry, for example, the authenticity of the will may be called into question later by one of the siblings by submitting another will. Probate puts a stop to this by determining Will’s fundamental legitimacy. 

What happens if you don’t get probate?

If a court of competent jurisdiction does not probate a will that needs to be probated, it loses its legal enforceability. As a result, the successors risk losing their claim to the inherited property, and the executors of the Will lack the authority to take any action to reclaim the title.

5.Challenges to Wills and Probate claims

It’s usually tough to overthrow someone’s will. Surprisingly, 90% of the wills are accepted without being questioned. Courts adhere strictly to wills because they are seen as the voice of the testator or will-maker, who is no longer there to defend himself. You can, however, question the will if you are interested in it. There are seven areas around which a will can be challenged:

• Inadequate execution: A legal will must be written and signed by the testator in the presence of two witnesses. The will can be contested in court if the process is not followed to the letter.
• Lack of intent in testament: In this case, the person must show that the testator had no intention of making a will. Because it is difficult to prove, this defence is rarely utilised.
• Incapacity to make testaments: People above 18 are required by law to make a will. Adults are believed to be capable of leaving a will. It can be overturned if the testator was incompetent to make a will due to senility, dementia, or insanity, or if the testator was under the influence of a substance or otherwise lacked mental ability. To contest a will based on mental capacity, you must establish that the testator was unaware of the ramifications of making the will at the time it was made.
• Lack of understanding or consent: You can argue that the testator did not understand the contents of the will when he signed it.
• Unjustified influence: You can contest a will to establish that it was obtained through fraud, forgery, or undue influence. This usually entails a manipulator persuading a susceptible person to hand over all or a portion of their property to the manipulator. Because of the manipulator, the person lacked the free will to bargain, which the word undue influence indicates.
• Theft or frauds: It would be your responsibility to prove that the will was forged (not written by the testator) or was written as a result of a fraudulent act.
• Family claims for revocation: A family member can challenge a will because they were not provided for adequately in the will. According to law, the head of a family is responsible for the proper maintenance of certain close family members specified in the Hindu Succession Act.

6.Process followed by the Court

Following the completion of the application, if it is confirmed, notices are sent to the legal heirs of the dead informing them that the court has received an application for probate. A wide notice is also published, providing anyone with the opportunity to protest the probate grant. The court will grant probate if no obligations are filed.

7.Cost of obtaining a probate

You must pay a court fee based on the value of the assets that are the subject of the petition because a high court grants probate. The cost of going to court varies by state. In Maharashtra, the rate ranges from 2% to 7.5%, depending on the slab, with a maximum of Rs 75,000. You must additionally pay the lawyer’s fees in addition to the court charge.

8.How to apply for probate?

Following procedure is required to be fulfilled by one to apply for probate:

• The executor of the will must file a petition for probate and the original will in the court. The executor (who would be the petitioner in this instance) must include the names and home addresses of the deceased’s representatives in the petition so that they can be served with notice.
• Based on the value of the assets, the executor will be required to pay court expenses.
• The petition must be filed in a court of competent jurisdiction. The fiscal jurisdiction of the court (jurisdiction based on the monetary worth of the petition) may need a higher court to declare probate for high-value tangible assets through a lawyer.
• The court next requests that the petitioner establish the testator’s supporting documents of death, proof that the testator’s will was lawfully executed, and confirmation that this is the deceased’s last will and testament.
• The court then requests objections by sending a notice to the deceased’s next of kin to raise any complaints they may have and ordering the release of a reference of the probate petition on board to inform the wider populace.
• If no objections arise, the court will permit the probate.

9.Who can apply for probate?

Only the executor named in the will has the authority to apply for probate. Only 7 days following a testator’s death can a probate application be filed. The application must be made in the form of a probate petition to the court with proper authority, using the services of a probate lawyer. The application must be accompanied by documents that establish the applicant’s identity. This includes a death certificate and any other evidence indicating the will being probated is the testator’s final will. 

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