The Hindu Business Line : Bequeathing your legacy to a legatee?

In the previous column (Business Line, June 22), we discussed some of the frequently asked questions on writing/executing a Will. As a sequel to that, let us further discuss some more associated terms such as bequest, legacy, ademption, executor and probate.

What is a bequest?

Whatever the testator bequeaths by his Will is called the bequest.

Can a bequest be void?

If any bequest is made to an attesting witness of the Will or if the person in whose name the bequest is made does not exist at the testator’s death, it will be void.

What is meant by legacy?

That which is left to one by Will is known as legacy.

Who is a legatee?

One to whom a legacy is left.

What happens if the legatee dies before the death of the testator?

The legacy will lapse if the legatee pre-deceases the testator. To take the legacy, the legatee should be alive on the date of the death of the testator. Otherwise, it will be called lapsed legacy.

What is meant by ademption?

Ademption means that the legacy cannot take effect by reason of the subject matter having been withdrawn from the operation of the Will.

Who is an executor?

He is a person designated in the Will to carryout the directions contained therein.

Can there be more than one executor?

Yes. If so, they should act jointly.

Can women be appointed as executors?

There is no sex discrimination for the office of the executor.

If more than one are appointed as executors, is there any provision for relinquishment?

Any executor, if he does not want to act as executor can relinquish his office in writing by way of declaration, while applying for probate and other/s remaining continue as executor/s.

Who can apply for probate and how and why it is obtained?

The executor appointed by the testator in his Will should apply to the Probate Court for issuing probate of the Will. The executor represents the estate of the testator. Immediately on the death of the testator, all his assets will vest with the executor. Executor should carry out the directions contained in the Will.

What is probate?

Probate is an order of the Court of competent jurisdiction declaring the validity of the Will after an enquiry, examining the executor and witness or witnesses. Probate is granted only to the executor of the Will and on his petition.

Is probate necessary for all Wills?

If the Will has been executed in the cities of Chennai, Mumbai and Kolkata, if the properties covered by the Will are situated in these cities, the executor must obtain an order of probate before taking any steps. Wills are not admissible (accepted) as evidence unless they are duly probated. Probate is required in Section 213 of the Indian Succession Act.

What is the effect of the order of probate?

The order of the Court issuing probate, containing the copy of the Will, establishes the validity of the Will and renders valid all immediate acts of executor from the date of his death in terms of the Will.

What are the duties of an executor?

He should protect the property of the deceased till it is distributed to the legacies according to the directions given in the Will.

He should file an inventory in the Court, which granted the probate within six months from the date of the order.

He should also file a statement of account within one year from the date of the order showing the receipt and disbursement of amounts pertaining to the estate of the deceased.

He should first discharge all the liabilities of the deceased before distributing to the legacies.

What are the expenses for obtaining probate order?

A probate duty has to be paid on the total assets of the deceased, based upon market value of the properties covered by the Will at ad valorem basis by way of Court fee. Court fee payable varies from State to State

Are Wills by Muslims different?

Yes. A Muslim can make a Will orally or by writing and if written, no attestation is necessary.

Are there any restrictions on a Muslim making a Will?

A Muslim can’t bequeath his entire estate like non-Muslims. He cannot bequeath more than one-third of his estate by way of a Will. Bequest in excess of the one-third limits cannot take effect unless his heirs assent to it.

Is probate a must for Will executed by a Muslim?

A Will by a Muslim requires no probate as Section 213(1) of the India Succession Act is not applicable to them.

What about Wills executed by Christians?

Under the provisions of the amended India Succession Act 56/2002, the Wills by Christians also need not be probated.

What is the stamp duty for the Will?

Will can be hand written or typed on a plain sheet of paper. No stamp duty is payable.

(The writer is a Chennai-based advocate)

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