The past year has been challenging for most of us. While we all try to keep a positive attitude and make the best of a dull situation, we cannot deny the fact that the times have been uncertain. Many have suffered losses – family, friends and colleagues who have succumbed to the dreadful pandemic. Those of us who were fortunate enough to have not faced these circumstances are left constantly worried about the health of our loved ones, often leading us to think about something we avoid – our mortality.
It is times like these that lead us introspect and evaluate what we can do to protect and secure the interests of our loved ones in case of an unforeseen event. Estate planning and writing down a will might seem morbid to think about, but it is especially important given the uncertain world we are now living in. And if you think about it, wouldn’t you be more at peace once you have ascertained what would happen to your assets/properties in case of your death? Wouldn’t you want do justice to your loved ones and ensure everyone’s interest is secured as per your liking and avoid any unpleasant family disputes over property etc. after your demise?
Understanding a Will:
Every woman (not being a minor and being of sound mind) has the right under law to dispose of her property as per her liking in case of her demise. A Will is a legal declaration of the intention of the testator (the author of the Will) with respect to her property which she desires to be carried into effect after her death. The Will once written is only executed upon the demise of the testator by an executor who is usually named in the Will itself.
You may write a will at any time during your lifetime and keep it in safe custody of a trusted family member or friend or even your legal counsel who shall be the executor of the Will upon your demise. It is, however, recommended that every person above the age of 30 should write a Will.
Dying intestate
So, what happens if you do not have a will? Dying without a will is legally termed as “dying intestate”. In India, the law of succession is quite complex and different personal laws apply to different religions and cultures. If a woman dies intestate, then usually an administrator will be appointed by the State to divide her property amongst her heirs in accordance with the law applicable to such woman.
Generally, in case a woman is survived by her husband and children, her property will be divided amongst them in the proportion prescribed under the applicable personal law, and no property will devolve upon her parents or her siblings. For example, in case of a Christian woman, 1/3 rd of the property will typically devolve upon her husband and 2/3 rd will be divided amongst her direct heirs – her children or grandchildren. It is important to note that if you die without a Will and without any heirs, your property will be confiscated by the Government!
Types of property
Many of us might be working women who have acquired wealth and property during our career, and many of us might also be home makers saving every little penny we can to make up our own personal wealth. For Hindu, Buddhist, Jain and Sikh women, such property is categorised as “general property” which can be inherited by their direct successor i.e., husband, children, and grandchildren. It is important here to note that sons and daughters have equal rights in the property of the deceased. If such woman has no direct successor, then property would devolve upon the heirs of her husband, i.e., his children from perhaps a previous marriage, his brother or sister or even a cousin. Only if her husband too is not succeeded by living heirs, siblings or other family, then her property would be given to her parents, and if her parents too are deceased then the property will be inherited by her father’s heirs, and if there are no such heirs, then her mother’s heirs.
The property inherited by a woman from her parents, or her husband or in-laws is treated a bit differently so in case she does not have any direct heirs, her ancestral property from her parents will go to the heirs of her father. These rules may differ for women belonging to different cultures.
Things to keep in mind while writing a Will:
While it is advisable that you seek legal counsel to understand how your wealth can be managed and how you should write a Will, somethings that you should keep in mind are:
Be sure to sign your Will to evidence your intention and give effect to the writing as a Will.
It is always advisable to have your Will attested by two witnesses, who should have seen you sign the Will and who can testify as to your intention if a dispute arises.
For better security and to maintain the integrity of your Will, you may even register it
with the Government – there is no extra cost for doing so.
Ensure that your Will is clear and precise, and your assets/properties are clearly
categorised and identified to avoid any dispute as to your intention.
Given the above, it would seem clear that if you do not want the succession laws and the Government to define who gets your hard earned and hard saved money and property, it is about time you wite your Will to express your desires as to who would inherit your assets and in what proportion to ensure the protection and security of the future of your family and loved ones.
The views of the writer are her own.
References
Vibhuti Kochhar
( India )