AFTER THE DEATH OF A PERSON, HIS PROPERTY will be divided in two ways:-
1. According to the respective law of succession, when no will is made
– i.e.intestate- Hindu Personal Law or Christian Personal Law or Muslim Personal Law or the law of the country they are residing in depending on many factors.
2. By way of the will, he has made i.e. testamentary
What is a will?
WILL is a legal declaration of the intention of a person with respect to his property or a state, which he desires to take effect after his death.
WILL is an untitled document which state after the death of a person making the deposition and it is a document which can be revoked, modified or substituted by the person executing/making/writing the will at any point of his time during his life time.
For executing the Will the person must be fully competent, as much as he should not be a minor and should not person of unsound mind.
The process of preparing a will and its validation
The Will has to be in writing and has to state that the person executing the same is making it out of his own free will and in a sound disposing of a state of mind. It has to be signed by the executor of the Will and has to be attested by two witnesses at least.
The WILL under the law is not required to be compulsory registered. It can be executed even on a plain paper and it can be fully valued even if unregistered-it is better but to get it registered.
In the event of the person desiring WILL to be registered, he has to approach the office of the Sub-registrar and has to be accompanied by the people who have signed as witnesses to the said WILL.
The executors of WILL, as well as the attesting witnesses, have to put their signatures and thumb impressions in the register maintained by the Sub-registrar.
There are Sub-registrars defined for various district and you have to inquire for in this regard from the concerned office as to which Sub-registrar you are required to get your WILL registered.
The Sub-registrar would be as per the place of the residence of the person executing the WILL.
It would always be better to get the help of practicing advocate/lawyer to write a will-but always confirm and cross check it before you get the will attested or registered.
When a Will is not made regarding Personal or Company Assets
When a male dies unexpectedly or where there has been a tragic demise and there is no will, it often creates problems for the legal heirs and successors. This can result in unintended injustice. The property passes to the minor children, the surviving wife and to the mother of the deceased (although not on good terms) in equal shares.
If there is an office or house, an equal share will go to the mother. Shares of companies are also divided equally. It is difficult to get all the heirs on a common meeting ground to write to the companies to transfer the shares to the names of the respective heirs. But all these problems can be obviated if a will is left behind.
Impact on Will as per Hindu Personal Law
According to the law of inheritance and succession, if a Hindu male passes away,
Hindu female shares equally with the male i.e. a son and daughter will succeed with equal shares.
The wife, as well as the mother, also gets an equal share.
There is nothing to prevent a Hindu male from bequeathing his entire property to a stranger if he so desires by writing a will.
Impact on Will as per Muslim Personal Law
A Muslim male cannot will away more than 1/3 of the estate i.e. 2/3rdof the property must be divided among the family members in the shares laid down in the Shariat Act, 1937.
A Muslim wife cannot be dispossessed even though she has to share with other wives if there is more than one wife.
The widow gets a definite share.
Mohammedan Law gives the male heirs, the sons, twice the share of the daughters.
It is always suggested that you keep details of the will confidential.
Know the law….protect yourself and your loved ones.
Adv Kiran T K