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Are the laws different for different religions?

Yes, the Succession Laws are different depending on the religion of the deceased person. For instance – The Hindu Succession Act 1956 shall be applicable if you are a Hindu, Buddhist, Sikh, or Jain. Similarly, The Indian Succession Act, 1925 is applicable if you are a Christian or Parsi, and the Muslim principles of inheritance apply if you are a Muslim (there are different rules for Shia, Sunni, Khoja, etc.) At Yellow, we have subject matter experts who are well versed to advise on each of the different succession laws.

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What if there is no Will? How are legal heirs established?

In the absence of a Will, a Succession Certificate/ Legal Heir Certificate must be obtained from Court in case of movable properties only. If the deceased has left behind immovable property, then Letters of Administration are required to be obtained.

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Do I need to register my Will?

No, registration of your Will is not mandatory as per Indian laws. A Will signed by two Witnesses is a legal and valid Will.

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What is Probate of a Will? Is it mandatory for all Wills?

Probate is a legal certificate issued by a court of law in certain cities (Mumbai, Chennai, and Kolkata) after the validity of the final Will is proved. An Executor nominated under the Will can apply for probate post the lifetime of the Testator (ie, the person writing the Will). Once the court grants the probate or certifies the Will, the Executor is entitled to take the necessary steps to enforce the Will. Certain situations require Probate, and when there are many immovable properties or the assets are of high value, Probate may be insisted upon before the title of owner is changed to avoid any disputes in the future.

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Will my legal heirs or I be required to pay income tax or any other taxes in respect to properties received under the Will?

No, as of today, any property received under the Will does not attract any tax including capital gains tax. In the past, there was an Estate Duty tax which was abolished in the year 1985. That said, income arising from such inherited assets will attract income tax as these assets are owned by the recipient.

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Can properties in foreign countries be bequeathed?

Properties situated in foreign countries are governed by local laws in those countries and the procedure to enforce a Will in such countries could be different from that of India. Therefore, it is advisable to prepare separate Wills for each jurisdiction to avoid any delay or hassles in the transfer of assets to the Beneficiaries.

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When is a Will considered invalid?

When the person creating the Will is not of sound mind. Eg, a person with Alzheimer’s may create a valid Will in case he/she is capable of understanding their actions at the time of writing and signing it. On the other hand, a completely sane person cannot have created a valid Will if he/she was under the influence of alcohol at the time of its creation.
A minor (a person below the age of 18) cannot make a Will in India.
If a Will is attained through coercion (forceful methods), it is invalid.
You can dispose only of your own property. A Will through which a person is disposing of his/her spouse’s property is not a valid Will.

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Does my Will need to be video recorded?

Though it is not mandatory, it is advisable to create a video recording while the Will is being signed and keep the recording safe so that it can act as legal evidence, if required, to prove the authenticity of the Will.

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I have been told a medical certificate is required to write my Will. Is that true?

There is no such requirement under law. However, as a good practice, it may be advisable to obtain a medical certificate from a doctor mentioning that you were in good health and of sound mind at the time of writing the Will. This certificate may be kept on record along with the Will.

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Certain fields (such as ID and address) of my important people (such as Beneficiaries and Guardian) are blank in my Will document. Is my Will still valid?

Yes, your Will is valid even without these fields being filled in. However, we strongly recommend that you add in as much detail about your important people as possible, to make it easier for your Executor to execute your estate properly.

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What is a Living Will?

A Living Will is a declaration stating the person’s wishes regarding the use of life-prolonging medical treatments if he/she is not in a condition to communicate his/her wishes to the family or medical practitioners. It does not dispose of property nor is it operational after death like a Will. It must be noted that a Living Will is not legally enforceable in India. It only provides guidance to your loved ones and near of kin by stating your wishes regarding the administration of medical treatment.

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