Legal Guide

What Are the Risks Of Not Having a Will?

by Bhavya Choudhary · 3 min read

not having a will

The path to inheritance is generally paved with bad ‘Will’ tales all over the world. ‘Will planning,’ at least in India, is still not considered a component of financial management. Not having a will is a general problem that should be changed and people need to realize the implications of not having a will.

But, before we go into the implications of not having a Will or failing to plan for one, let us first define what a Will is. 

What is the definition of a Will?

It is a legal document that identifies the individual(s) who will inherit a person’s property and assets following his or her death. There are certain disadvantages of not having a will. 

What is the importance of will planning?

Will preparation is critical since the document always serves as an inventory of the deceased’s assets. A well-written and straightforward Will helps to avoid disputes among the natural heirs. Also, if a person wishes to pass his or her money to someone other than his or her natural heirs, he can do so by making a will. Therefore, having a will that is registered is always better than not having a will. 

If a person is not having a will, then the distribution of the property will be done in accordance with the laws. It prevents intestate succession and reduces family conflict. 

Will registration

A Will can be written on plain paper and is fully appreciated even if it is not registered, i.e. it is not required by law to be registered. That does not, however, restrict a person from registering the same in order to dispel any suspicions about its authenticity. Will registration is not compulsory. 

If you want your Will certified, you must go to the sub registrar’s office with witnesses. There are sub-registrars for several districts, and one must inquire about the one who would assist in the registration process at the relevant office.

What are the risks of not having a will?

The most common estate planning blunder is ‘not having a will’. Families of the deceased are likely to face a great deal of hardship if they do not have a formal will in place. To claim the money left to them, the heirs may have to spend more time and incur more expenditures. 

In addition, not having a will may result in an unfavorable (from the deceased’s perspective) distribution of assets, since when a person dies and he/she is not having a will then, his/her estate is distributed according to the deceased’s religious succession rules.

Hindu law

The Hindu Succession Act applies to Hindus, Buddhists, Jain, and Sikhs. In the event that a Hindu man dies without having a will, his property shall pass to his Class I heirs.   

  • Sons.
  • Daughters.
  • Widow.
  • Mother.
  • Son of a predeceased son.
  • Daughter of a predeceased son.
  • Son of a predeceased daughter.
  • Daughter of a predeceased daughter.

If none of these exist, they will be passed down to Class II heirs in case of not having a will; 

  • Father.
  • Son’s daughter’s son.
  • Son’s daughter’s daughter.
  • Brother.
  • Sister.
  • Daughter’s son’s son.
  • Daughter’s son’s daughter.
  • Daughters daughter’s son.

If these do not exist, they will be given to Agnates (Agnates are male lineage distant blood relations.), and if they do not exist, they will be given to Cognates (Cognates are male or female lineage distant blood relatives). If these are also missing, the estate will be turned over to the government if the person dies without having a will.    

If a Hindu woman dies without having a will, her assets will be distributed as follows:  

  • First, to the husband and sons and daughters (including offspring of a predeceased son or daughter).
  • Second, to the husband’s heirs.
  • Third, to mother and father.
  • Fourth, to heirs of the father.
  • Fifth, to the mother’s heirs.

Muslim Law

There are four sources of the Islamic law that make up the Muslim rule of succession in case of not having a will:  

  • Sacred Quran;
  • The Sunnah  (Prophet’s way of life).
  • The Ijma – an agreement among the community’s learned men on what should be a judgment on a certain issue;
  • The Qiya is the derivation of what is right and reasonable in relation to God’s excellent principles.

General guidelines for the administration of a dead Mohammedan’s inheritance

Regardless of the schools, the general laws of Muslim inheritance are as follows in case of not having a will:

  • The deceased person’s estate comprises both moveable and immovable property, with no difference made between the two.
  • There is no such thing as joint family property or property obtained by oneself.
  • Only when a person dies, the issue of inheritance of property arises. A kid born into a Muslim family does not automatically acquire the right to property.

When a Muslim dies, it is critical that the following four responsibilities are carried out in the following order:

  • Expenses for funerals and burials;
  • Paying the deceased’s debts;
  • Determine the deceased’s worth/will; 
  • The deceased’s remaining property and estate be distributed to his or her kin according to Sharia law.

According to Muslim law, a person must leave behind wealth and property for his family. In such instances, he is only allowed to leave 1/3 of his estate to those who are not related to him by blood.

Conclusion:

Not having a will is probably one of the biggest mistakes when estate planning is concerned. Not having a will may lead to an undesirable distribution of the asset. If you have multiple assets and you anticipate trouble over your inheritance, making a registered will in consultation with a professional lawyer is the wisest thing one should do.   

Drafting a will and becomes easier when you consult a lawyer who specializes in will drafts.

Bhavya Choudhary

Written by

Bhavya Choudhary

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