The documentation of an Estate Will isn't something most of us like thinking about, given all the implications it is accompanied with, but it is a bitter pill we are all forced to face - in the aftermath of a family member's passing, how does one go about managing their estate and inheritance, and worse - can disputed money matters embitter existing familial relationships and invite a time for hardships?

This is especially pertinent if our parent or spouse dies, leaving us bereaved but also in financial vulnerability - unsure of what it could mean for our existing living conditions and the assets that were owned by the deceased. In the wake of a person's demise, their Will, when executed legally keeping in mind all the clauses will only benefit the deceased family left behind, allowing them the comfort to mourn their passing.

If you or your loved one have been pondering over registering your Will, here are some compelling reasons to contact your legal personnel today:

• Having a Will ensures that provisions for your surviving children and spouse will be made in your absence
• Allows your family the privacy to grieve without losing sleep over money matters and property litigations
• Leaves a clear outline detailing who inherits parts of your estate and who doesn't
• Appoints a manager for your estate - leaving you with the peace of mind knowing your life's work will be well looked after
• Minimises the potential for family disputes
• Allows you to allocate adequate funds for the causes you feel strongly about

The dictionary definition of a Will states that it is the legal documentation of one's inheritance, as well as an expression of an individual's intent regarding what they'd like done with their estate and assets, after the time of their passing. A will leaves a manager and an executor in charge, both of who will manage the estate and see that the will is executed appropriately. The Will is not the single solution to all the issues that may arise in the aftermath of a death, but it is a close second - minimising the possibilities of legal hassles and familial conflict to a great extent.

Some legal terms to keep in mind, in the context of a Will are:

• Testator: The individual's whose Will is being made, and that who signs the Will - making it official.
• Beneficiary: The person (s) who are named in the Will, and are slated to receive an inheritance, as mentioned in the document.
• Executor: The person appointed in charge to ensure a fair execution of the deceased's will.

A LEGAL WILL VS GIFT DEEDS & SUCCESSION CERTIFICATES: WHICH MAKES MORE SENSE?

Should an individual not leave behind a Will, it then becomes a matter of the court, where their family members can file a petition for a succession certificate, in order to use and access the deceased's assets, property and estate. While it is a well-established government procedure, the claim for a certificate can be disputed by other family members, making the process more tedious and taxing - a possibility that could have been eliminated, given the presence of a Will.

Often times, if an individual bequeath their property and assets while they're still alive to a family member, they can also choose to do so, through a Gift Deed. While it is seen as an alternative to making a Will, the gift deed also comes with its own set of limitations:

• A gift deed comes into effect immediately, which means that the individual gifting the property/asset also loses ownership and control of the property immediately.
• The gift is exempted from Income Tax charges, only if its value does not exceed Rs 50,000 - an unlikely prospect, should a property being gifted to someone.
• Specifically when a residential property that was gifted, and is in the process of being sold within a period of 36 months, the profits accrued from the sale will be considered as short term capital gains and will be taxed at the given rate.
• Revoking a gift deed is tedious, and is nearly impossible unless it is specified in the original deed that the assets can be taken back as a right of the gifter.
• Should an individual want to gift an asset to a non-relative, they will have to make a sales deed as the Indian Laws will not recognize this transfer, as a gift.

THINGS TO KEEP IN MIND WHILE DRAFTING A WILL, SPECIFIC TO PROPERTY TRANSFER

Unlike the movies, drafting and signing a legal Will is a little more complicated than just expressing your wish on a death bed - we don't say it isn't a possibility, but the dramatic portrayal of last wishes is extended only to soldiers and other first responders, in the form of a privileged Will. Wills and the rules around is differing for everyone - depending on the religion they belong to and the king of inheritance they leave behind. In India, specifically - Hindus or individuals who are born into the religion are required to fall under The Hindu Succession Act of 1956, while the rest of the Indian population will have their inheritance laws re-enacted under the Indian Succession Act of 1925.

Keeping these in mind, we try and guide you into drafting a Will that tries and stays clear of conflict and ambiguities, specifically around property bequests in the event of one's passing. Immovable properties are expensive assets, and often already the homes we live in - warranting a treatment that s careful and well thought through. Here are some of the ways, a testator can ensure a smooth transition of their assets onto their loved ones and beneficiaries, through reinstating a Will.

1. Distinguish between Self Acquired Property and Generation Property

As the title name accurately depicts, before signing off one's property to their heirs, one needs to determine what kind of property it is. Self-acquired property is property one buys with their own income which also allows them the right to do with the property, what they seem fit. Which means, they can choose to leave it behind to whosoever they wish to. However, generational property - or the property the testator has also inherited, doesn't enjoy the same freedom. If it is the latter, then the property is automatically passed on to one's heir, guided by the Hindu Succession Laws, contrary to what happens in the case of self-acquired property - where the testator determines who to pass it on to. These would be important details to keep in mind while signing a Will.

Similarly, for succession concerns that fall under the Hindu Undivided Families (HUF), all legal heirs or coparceners acquire a right to inherit the property by birth itself. What this means is that if one's self-acquired property is left to someone who isn't a legal heir, their claim stands a chance to be taken to court and disputed by the legal heirs.

2. Adhere to all the Essentials of Drafting a Will

Above all, the testator must ensure that their Will is drafted in a watertight way, which would ensure that it stands up in court and their beneficiaries are provided for, as instructed. In the case of property inheritance, oftentimes, many stakeholders come forward To avoid long-drawn court battles, the testator can ensure that there are discrepancies in their Will by adhering to all the required legal norms:

• Make a Declaration: This involves declaring at the beginning of your Will, that as a testator you are of sound mind, thereby ensuring that no one can dispute the Will by claiming that the testator was coerced into signing it. If this is the second of third Will that is being drafted, it must be noted that all the previous provisions made in the previous will are legally revoked.
• List out ALL your assets: Be diligent and thorough with your assets, and list everything you own down and wish to leave behind to your loved ones. This includes your movable and immovable assets and the funds one may like to leave behind to trusts and charities as well. Nothing ought to be amiss or unaccounted for.
• Divide your assets and pronounce your beneficiaries: To best avoid confusion and ill will, it is best to clearly specify who one would like to leave specific things to without ambiguity. If one leaves behind inheritance to a minor, then appointing a custodian is necessary as well - to protect their interests.
• Invite reliable witnesses: The Will needs to be signed in the presence of two witnesses, who will be called upon later at the time of sanctioning its probate. Your witnesses don't need to read the Will, just be present while you sign it - attesting your intent to pass on your inheritance.
• Secure your Will: most importantly, your Will must be signed and stored away for posterity, so it is produced at the correct time, in the event of one's passing. If a bank is your executor, they usually keep a copy with themselves, but it is still considered wise to make your own copies and trust your dead ones with it.

MEASURES BENEFICIARIES OUGHT TO TAKE FOR SMOOTH PROPERTY TRANSFERS

As beneficiaries enlisted on a Will, there are many legal fences to get over, to ensure that the Will remains undisputed and is executed with full integrity. Inheriting property also comes with its own set of norms and regulations to adhere to, and abiding by those will only make the process of transferring ownership easier and more fuss-free. Here are some important aspects to keep in mind.

1. Title Transfers

Especially in the case of self -acquired property, the title transfer is extremely important, for the beneficiary's ownership to be legal, in the eyes of the court. The Will needs to be registered immediately, followed by a probate petition that will initiate the execution of the Will. This will involve the process of Mutation - where the beneficiary has to get the property registered in their name, for it to be legally valid. If this is not done, then the beneficiary cannot mortgage the property or rent it out. Sorting out the Tittle Transfer should be a priority in the case of property inheritance.

2. Adverse Possession

Property inheritors must be wary of adverse possession, which is also referred to as the squatter's rights, in lay man's terms. If the property has not been occupied by the beneficiary for over 12 years, then the property's residents (could be tenants or other members of the family) have a legal right to stake a claim over the property. The key to avoiding this is by changing tenants every few years, not allowed anyone an uninterrupted long period of time in your property.

3. Understanding the Tax Implications

It is imperative that the beneficiary of the property also understands the tax implications of inheriting it. While you have no tax liability at the time of acquiring an inherited property, profits made on sale are liable for capital gains tax. The holding period considered for such sale is not the date of inheritance but the actual date of purchase of the property.

The Long Term Capital Gains tax liability is computed on the difference of net sale proceeds and indexation cost of acquisition of the inherited property.