Today, most of us know what a will is and what it does. We also understand its significance and the central role that it plays in the crucial process of estate planning. I have discussed the importance of having a will in place in an earlier article, Passing On The Torch. But given that a will is such an important document, very few of us make the effort to understand the various legal terms related to a will. Having an understanding of these terms is crucial for everyone who creates or benefits from a will. So today, I will explain the most important legal terms commonly found in a will and the procedural aspects associated with some of them.
The legal terms associated with the various parties to a will would be a good point from which to start this discussion. Any person who owns assets they would like to pass on and hence creates a will is known as a testator. The pool of assets passed on through the will is known as the estate. The people to whom the testator's estate is passed on through the will are known as beneficiaries. The validity of the will must be verified by at least two individuals who are known as witnesses. Those appointed to manage any portion of the estate inherited by minors on their behalf are known as guardians. Finally, the party who administers the testator's assets to the intended beneficiaries under the will is known as the executor.
Executors may be appointed from within the close personal circles of the individual. Alternatively, a qualified professional such as a lawyer, chartered accountant or financial advisor may also be appointed. The nuances involved with each of these choices are explained in the graphic that follows.
The decision as to whether to appoint an executor from within personal circles or by hiring a professional must therefore be made in light of the facts of each case. Once the testator passes away, they are termed as the decedent. Where an individual passes away without having prepared a will during their lifetime, such an individual is said to have died intestate. Those who are related to the testator by blood (parents, siblings, children and so on) are termed as the next of kin. They should not be confused with the beneficiaries of the testator's will. Someone who is not a blood relative of the testator also can be a beneficiary of their will. So these two terms may not be synonymous.
Let us now move on to various operations and procedures associated with wills. There are times when the testator may need to make changes to the terms and contents of the will. Such changes can be effected by way of a codicil (pronounced code-uh-sill). A codicil allows the testator to alter the will without having to redraft it from scratch. The situations where a codicil may be required are laid out in the graphic that follows.
Whenever a codicil is effected it is important to appropriately reference the clauses of the original will which are being amended. The references must be made individually. Also, it is not necessary to attach a copy of the original will when a codicil is effected. But it may be considered ideal to do so. When the testator passes away both the original will and each codicil effected is taken into consideration when administering the estate of the testator.
In situations where the authenticity of the will comes into question, the best way to dispel such doubts would be to get the will probated. A probate is a copy of the will of an individual that is sealed and certified by a competent court of law. In most cases, probates are granted by civil courts or the high court of the state in which the will is drafted and registered. Getting a will probated should not be confused with getting it registered. Registering a will merely involves getting a will notarised by a registrar. It does not require the involvement of a court.
Also, while the validity of a registered will can still be questioned, that of a probated will cannot. A probated will would thus naturally carry more weight than a registered one. In most cases, it is the executor of the will who can make an application to get the will probated. The list of documents required to initiate and complete the process of probating a will are given in the graphic that follows.
Quite obviously, a will cannot be probated so as long as the testator of the will is alive. When a will is probated, both the original will as well as every codicil effected by the testator is submitted to the court for certification. The procedure to get a will probated by a court and execute it is explained in the graphic that follows.
In most cases, getting a will probated is not a necessity in India. But, there are a few exceptions to be borne in mind. Firstly, according to the Indian Succession Act of 1925, if a will has been made by a Hindu, Sikh, Jain or Buddhist within the territories of unpartitioned Bengal, or any other territory falling within the jurisdiction of the High Courts of Madras or Bombay, then a probate is compulsory. Also, where the estate being passed on includes immovable property situated in multiple states, a probate becomes a necessity. Finally, disputes between beneficiaries or legal heirs of the decedent as to their rights in respect of the estate under the will are also ideally resolved by probating the will.
A will is a crucial document in the financial toolkit of an individual. Therefore it is best prepared with help from relevant professionals such as lawyers and financial advisors. But this does not make us immune to the fact that we must educate ourselves on the various legal terms and procedures associated with wills. A clear understanding of these aspects would help us get a grip on the essential crux of the substance contained in our will. It would also help us spot any potentially devious tactics employed by the professionals we enlist to help us prepare our will. This would ensure that we see to it that our will is prepared as we have envisioned, with our estate being passed on to the right hands at the right time.
Finally, a list of all the terms discussed here with their meanings are given below:
Testator - The creator of a will who owns the assets that are passed on under the will
Estate - The pool of the testator's assets that are passed on under the will
Beneficiaries - The intended recipients of the testator's estate
Executors - Those appointed to administer the testator's estate to the intended beneficiaries under the will
Witnesses - Those who verify the validity of the will
Guardians - Those who manage the portion of the estate handed down to a minor beneficiary on the minor's behalf until the minor attains majority
Next of kin - Blood relatives of the testator
Decedent - Used to refer to the testator after their death
Intestate - Dying without preparing a will
Codicil - Alteration made to the clauses of the will
Probate - A copy of the will certified by a court of competent jurisdiction