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WILL Registration and Probate

01 October, 2021

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What are they and what do they mean?

1
LETS’ UNDERSTAND REGISTRATION OF WILLs

A lot of us write our WILLs but do not know whether it needs registration or not and there are a lot of touts in the registering authority who take grieving relatives for a ride asking them to register a dead man’s will. Leaving the ethical side of the business aside, let us first see whether registration is necessary, and if it is, what are the circumstances.

The registration of any document including WILLs are as per “The Registration Act-1908”. According to this Act, Section 17 & 18 specifies which documents need to be registered mandatorily and which documents the registration is optional.

According to the section (18 e), a WILL document falls under the category, where registration is optional. The reasons are as follows,

Registration of any document is Mandatory when both the parties are alive (i.e Buying / selling land and house).

However, when it comes to WILL, it basically happens when the person bequeathing is deceased or dead, and the receiver is alive. In this scenario, the WILL registration is not mandatory. This is the core of this act.

So basically, the law does not require the WILL to be registered.

If there is no dispute within the family about distribution of assets, and all members are amicable, then registration of a WILL is not required. However, when there is uncertainty and dispute among family members, and the assets are large and wide spread, registration of WILL is necessary to ensure that the assets are transferred correctly without any hinderances to the respective heirs and also ensures greater authenticity to the WILL document.

MIMI PARTHA SARATHY
Managing Director,
Sinhasi Consultants Pvt. Ltd.

For everybody who had the question of whether to register their will

With regard to your WILL, we feel and suggest that there is no need of registration, if you lead a simple life AND all family members are amicable AND if your assets are mainly being given to class 1 heirs – namely your spouse and children. However, if you would like to register your will, it is fine to go ahead and register.

Case 1

Recently my friend’s mother passed away and they had a handwritten will, properly signed with witnesses, and when he went to do the transfer of assets mentioned, it was rejected as it was not ‘registered’, which is not mandatory as mentioned. What can be asked for is ‘probate’ of will. Especially when family members are already grieving about loss of their loved ones, such demands cause more stress and confusion.

In this case mentioned, please remember that registration of WILL is not possible since it is after demise of the person. The respective person who has written the WILL should be MANDATORILY BE alive during the registration process.

According to us, the formalities / procedure which happened to the relatives was for “Probate of WILL” which is a procedure according to the Indian succession act 1925 for applying for succession certificate etc.

2
LETS’ UNDERSTAND PROBATE OF WILLs

So what is a WILL Probate?

As per Indian Succession Act-1925), probate is the judicial process through which the validity and authenticity of a WILL is determined in a court of Law. WILL probate is also possible only post demise of the testator.

According to the succession Act-1925, if the WILL is executed in Chennai, Mumbai, Kolkata AND if a WILL relates to the properties situated within these 3 cities, Probate is mandatory.

According to the succession Act 1925, probate is NOT mandatory in other cities and cases apart from above point.

During the probate of the WILL, court will check & conclude only about “originality of the WILL document” and will not get into the content of the WILL and subsequent disputes if any.

WILL Probate regarding financial instruments (As per current practice)

Despite the WILL probate not being mandatory as per law except in the above point pertaining to Chennai, Mumbai, Kolkata, all financial institutions i.e Insurance companies, Banks, MF AMCs, Stockbrokers / depositories insist on probated WILL to ensure that the financial assets are getting transferred to correct persons. This has become the norm today to avoid disputes with third parties once the financial assets are transferred as per the WILL.

3
WILL REGISTERING MY WILL MAKE IT STRONGER?

The distribution of assets start post the demise of the person & the following points are specifically with regard to financial assets.

Usually the Mutual Fund AMCs, Banks, stockbrokers will first check if there is a second holder & if the second holder is alive, the assets will be transferred to his/her name.

If there is no second holder, MF AMCs, Banks, stockbrokers will look at who has been nominated in the agreement and the transmission of assets will be done to nominee.

If there is no nominee registered, the legal heirs must produce a WILL and, in this scenario, the WILL document needs to be authenticated by court via probate.

This probate is required for both 'registered WILL' as well as 'unregistered WILL'. This probate is mandatory to verify that the respective WILL document is genuine.

Basically, the WILL document supersedes everything including nominee and second holder. Final distribution of assets will be as per WILL (if it is there) or as per succession act. In this case, second holder & nominee are just a custodian if they are not beneficiary as per WILL.

Conclusion

Here are some important points for the correct transfer of your assets and for registering and probate of WILLs:

Ensure the second holder or nominee in all your financial assets is as per who want to bequeath to in your WILL. This makes transfer of assets easy with no surprises.

If there is no dispute among family members, and everyone is amicable with each other, and your assets are being bequeathed to your class 1 heirs – i.e. spouse and children, a simple unregistered WILL will do.

Simple WILLs can be hand- written neatly and legibly or can be typed so it can be clearly read.

Ensure you have 2 witnesses for your WILL.

When there are large and multiple assets and many beneficiaries, it is best to get legal expertise in ensure a well – drafted WILL with registration.

While inheriting assets, be ready to probate WILLs today since this has become a norm for transfer of financial assets.

Sinhasi has been helping people execute their last will and testaments since 2003. Reach out to us for your estate planning and Will preparation so that basis your nominations and joint holders in your investments we ensure that no one suffers.