Legal Aspects of a ‘Property Will’

A ‘Will,’ as it called in legal terms, has much relevance with regards to property inheritance. It is a legal instrument that thrusts upon a person, called the ‘testator’, the right to decide how his real estate will be managed and entrusted after his death.

What is the purpose of a ‘Will’?

A ‘will’ serves various important purposes. It facilitates the ‘testator’ to select his legal heirs rather than his heirs being chosen as per state laws of descent and distribution. According to state laws, the legal heirs of a ‘testator’ are his blood relatives. In case he dislikes them or is not comfortable with them being his legal heirs, he can entrust another person/persons whom he trusts better to be his legal heir. Such individual/s would be entrusted with serving as the executor of his estate as well as the fair distribution of his property to his beneficiaries along with protecting their interests.

Requirements

A valid ‘Will’ requires three essential components. First and foremost, it should have a competent testator. Secondly, it should fulfil the execution requirement of statutes which is otherwise called the ‘Statute of Wills’. It ensures that the ‘will’ is not a fraudulent document but reflects the honest intention of a testator. Thirdly, there should be clarity with regards to the document intending to have the legal effect of a ‘will’.

Prerequisites of a ‘Will’

·  The ‘testator’ should be an adult, of sound mind and be capable of writing a ‘will’.

·  He/she should be the sole owner of the property which should be self-acquired.

·  Ancestral property cannot be transferred through a ‘Will’.

·  Any person in a position to hold property can be a ‘legatee’ under a ‘Will’.

·  A ‘Will’ comes into effect after the death of the ‘testator’.

·  A person who dies without writing a ‘Will’, would have died ‘intestate’.

·  The person to whom the ‘testator’ entrusts the benefits is called a ‘beneficiary’ or ‘legatee’.

·  There should be witnesses to the ‘Will.’

Essentials of a valid ‘Will’

·  It should have the name of the ‘testator’.

·  The ‘testator’ should have appointed a beneficiary to the ‘Will’.

·  The ‘Will’ can be effective only after the death of the ‘testator’.

·  The ‘Will’ can be altered or revoked by the ‘testator’ during his lifetime. Any such amendment made is called a ‘Codicil’.

Contents of a ‘Will’

·  A ‘Will’ should contain all the details pertaining to the property, along with all the documents.

·  The value of the property should be mentioned.

·  The benefits that will be transferred to the beneficiary/beneficiaries should be clearly stated.

·  The ‘Will’ should be attested by at least two independent witnesses.

·  After the lifetime of the ‘testator’, the executor of the ‘Will’ should apply for ‘probate’.

·  A ‘probate’ provides a conclusive evidence regarding the authenticity of the ‘Will’.

Execution of a ‘Will’

·  There are statutes mentioning the formalities that need to be observed to make a valid ‘Will’.

·  These formalities relate to the writing, signing, witnessing, attestation and publication of the ‘Will’.

·  Due to these formalities, necessary safeguards are taken to ensure that the distribution of a ‘testator’s’ estate is done in a manner which is not tentative, doubtful or coerced.

·  A ‘Will’ can be written in any language provided it is inscribed with any material that results in a permanent record.

·  A ‘Will’ must be signed by the ‘testator’, with any mark that may include an ‘X’ mark, a zero, a check mark or any name that the ‘testator’ intends to be his signature.

·  Certain states permit the ‘testator’ to entrust another person to sign on his behalf.

·  As per statute, there should be at least two witnesses to a ‘Will’, with certain states mandating three.

·  The witnesses should sign and attest the ‘Will’, certifying that the ‘testator’ was competent while making it.

·  The witness should not have any financial interest in the ‘Will’.

·  The ‘testator’ should publish the ‘Will’ declaring to the witnesses that the document thus made is his ‘Will’. This declaration is called an ‘acknowledgement’.

·  A ‘Will’ thus made is ambulatory, which allows the ‘testator’ to change or revoke it before his death using a ‘codicil’.

·  In such cases, the intention of the ‘testator’ should be clear, whether expressed or implied.