Published on
15 January 2022
6 min read

In Absence Of A Will

Sep 11, 2023
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90 percent of Indians do not have a Will. One of the reasons is the belief that Wills are for people with significant wealth totaling to lakhs and crores of rupees. However, this is a misconception, a Will is required even if you own one bank account or some jewelry or a small house or any property even worth a modest value. A Will is the only document that permits an individual to ensure that his hard earned assets are inherited hassle free by beneficiaries chosen by him/her. Another big reason for not writing a Will is that people do not like to think about their own death. We all have a desire to live long and create beautiful memories with our loved ones. Hence, for many people writing or even thinking about a Will is scary but it has to be accepted that Death is a universal truth. Though we cannot physically remain with the people we love forever what we can do is show that we care by planning ahead and guaranteeing their financial security while they cope with and grieve their loss. 

The advantages of writing a Will are endless. However, here we explore what happens in case of a death without a Will.

When someone passes away without a Will, their estate is declared intestate and the court steps in to determine all the legal beneficiaries who have the right to inherit the assets of the deceased. There are several costs and consequences associated with such a situation.

Financial Cost:

The family has to run from pillar to post to get access and consolidate all the assets. A succession certificate needs to be produced to stake a claim on the assets. This can cost anywhere between INR 60,000-75,000 and around 6-8 months in court. The succession certificate ideally costs a percentage of the property, and this has to be paid upfront. It may happen that the beneficiary may not have that kind of liquidity to get a succession certificate. Additionally, a similar amount needs to be paid as legal fees and advise from lawyers. There is substantial cost to be borne by the beneficiary to claim their rightful share.

But this is not all, for immovable properties like land, house, building etc. you may have to procure additional documentation, for instance, a gift deed. In some states, in cases of intestate succession, property can be gifted or the share in the immovable property can be released by the legal heirs to each other. This can be done by executing and registering the gift deed or release deed with the registrar of assurances. Sounds easy, right? Now, this involves not only substantial costs but requires all the legal heirs to be on the same page. If there are disputes, this can convert into a legal battle for years. More than 66% of land disputes in courts are civil disputes because their ancestors did not leave behind a legal instruction allocating and dividing the property. Over 7.7 million people in India are struggling for over 2.5 million hectares. Adding to this, a lawyer charges INR 20,000 - 6 lakh per visit for handling a property dispute, thus making it financially challenging for people to even argue for their rightful share.

This is just the tip of the ice berg when it comes to financial costs. For complicated ownership structures and several legal heirs, in absence of a Will, the best option would be to get professional legal advice.

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The Complexity:

For intestate cases, the Hindu Succession acts comes into effect (Hindu/Jain/Sikh/Buddhist are governed by the Hindu Succession Act). In the Hindu Succession Act, the rules governing the distribution of the assets are different for males and females.

In case of death of a Male, the immediate legal heirs include wife, son, daughter and mother. The assets are equally divided between all these members. This may give rise to several complex situations. For e.g., if the deceased has a young family, they need to be supported for a longer period of time for life events like education, marriage etc. and need more assets, in such cases since an equal share passes on to the mother, the spouse  will not have total control over all the assets. Also, as per law, any siblings of the deceased will then become legal heirs to any asset that belong to the mother, in case she expires without a Will. There are some other situations that can be considered, if a son of the deceased has died before his death, the son’s wife and children are also legal heirs. If a daughter of the deceased has died before his death, her children will also be considered as legal heirs. In absence of a Will, there is fragmentation of the assets, and every legal heir inherits an equal share. Hence, it is essential to create a Will so that the distribution of wealth is in your hands.

In case of death of a Female, the first right on her assets will be of her husband, son and daughter, including the grandchildren but only in case the children are not alive. In circumstances where the female supports her parents or would want to give a portion of her assets to her living parents or any other close relative, it is not provisioned for by the law.

These complexities lead to random distribution of assets, the properties being passed on to relatives you might not have chosen as beneficiaries and creates disputes amongst family members.

Emotional Costs:

The emotional consequences far outweigh the financial costs, or the hassles of the complexities involved. The death of a loved one is the most dreaded thing that can happen to any family. It can get even more traumatic when the family realises that the deceased has not left a Will behind. . It takes a long time sometimes even years to finally access the assets in intestate cases. During this entire period, the feeling of helplessness and insecurity while dealing with feuding relatives can severely affect one’s mental health.

The one simple solution to avoid this state of affairs is by writing a Will. Traditionally, it would involve spending several days and hours at the lawyer’s office and considerable expenditure in terms of fees and other charges. But at Aasaan Will, you can create an online Will with 30 minutes of your time and with a cost saving of more than 60 percent. Each Will is reviewed line by line and crafted by our team of experienced lawyers.

Visit AasaanWill. Zaroori Hai!