What to Do With a Will After a Death?
How to Execute a Will?
How to obtain Grant of Probate in India?
Procedure to obtain a Probate in India.
What to do when someone dies and leaves a will?
When a person dies, all his or her possessions – real estate, money, share-holdings, personal belongings, etc. – become a part of his or her estate. Estate administration refers to the process of collecting and managing the estate, paying any debts and taxes, and distributing the remaining property to the heirs of the estate.
To do so, you’ll need to get the legal right to deal with their property, money and possessions (their ‘estate’). The heirs of an estate are determined by will, and if there isn't a will, by the intestacy (which means dying without a will) succession laws applicable to you as per your religion.
We can help you apply for a grant of ‘Letter of Administration’ if you’re the ‘executor’ of the will - the person named to deal with the estate.
Will Administration Process
Note: This is a simplified version of the events that need to take place. The average estate takes approximately 6-12 Months to finalise and there are many steps along the way.
Nexgen can guide you through the Will Administration Process and ensure that all the correct procedures are followed.
Step 1: Find the Will Find the will. If you are named the executor in the decedent's will, you will be required to find and file the decedent's will within a certain time period after their death. If you are appointed administrator, you will have to file the will in the court after your appointment.
- Filing the decedent's will starts the estate administration process.
- If the decedent dies without a will, they are determined to have died intestate, and your intestacy rules will determine how the estate will be administered.
Step 2: Collect the Assets As the administrator, it is one of your duties to determine and protect the estate's assets. To collect property, you will have to use your power as administrator or executor to take control of property and ensure its safekeeping.
- For example, you may have to collect money from the decedent's bank account. To do so, go to the bank and show them your letters of administration. At this point, the bank should honor our authority, close the accounts, and provide you with the money that was in them.
- In another example, if you are trying to collect something like a vehicle (or another piece of tangible personal property), you may have to locate that property and keep it in a safe place until it is sold or distributed.
Step 3: Inventory the Assets Once you have collected the property, you will be required to inventory that property. In order to show the court you have successfully completed this task, you might be required to file an inventory form. The inventory form will contain an itemization of all property, its value, and a description.
Step 4: Pay Creditors Claim Allow creditors to make claims. When it comes time to pay the decedent's debts with the assets of the estate, you will have to pay them in order of priority. If there is not enough cash in the estate to pay the debts, you will have to sell property in order to make the payments.
Step 5: Collect debts Part of managing the estate means collecting outstanding debts owed to the deceased. You need to inform those who owed the deceased money that they should make payment to the estate. Be sure to send debtors a letter to this effect, and keep copies on file.[ Also, consider checking with an lawyer to find out how long debtors have to pay the debts they owe the estate. Be sure to include this information in the letter you send.
Step 6: File Taxes As the administrator or executor, you are required to file all the necessary tax returns on behalf of the deceased and the estate. According to section 159 of the Income Tax Act, if a person dies, then his legal representatives shall be liable to pay any sum which the deceased would have been liable to pay if he had not died, in the similar manner and to the same extent as the deceased. They do not have to pay tax from their own pocket and their liability is limited to the assets they inherited.
- It might be difficult to obtain details of the income earned by the deceased person during the year and tax deducted/remitted on the same.
- In case the deceased has foreign assets/income, these would have to be included in the return of income for the relevant year.
- The tax must be payable from 1st April to death of the taxpayer.
- The legal representative can receive the refund while processing the return of income of the deceased. Usually, the refund is directly credited to the bank account provided at the time of filing the return.
Process for Filing Returns for the Deceased
- The legal representative would have to be registered on the tax portal. For this, s/he needs to log in to the e-filing website, using the credentials of the deceased person, and place a request to register the legal representative. Copies of specified documents such as PAN card (self-attested), death certificate, legal heir certificate and PAN card (of the deceased) need to be uploaded.
- The tax authorities would send a confirmation mail to the registered e-mail ID, approving the request. On receipt, the legal representative can file the tax returns of the deceased person. They would have to log in using their own credentials for this purpose.
Step 7: Make the Final Distribution of Assets Once all debts have been paid and all the property has been collected, you need to distribute the remaining property to all the decedent's beneficiaries. If there is a will, you will distribute the assets in conformance with the wishes contained within it. If the decedent died intestate, you will distribute the remaining assets in conformance with the applicable succession laws.
- You will need to fill out receipts reflecting all of these distributions and they must be signed by the recipients.
Step 8: Prepare a Final Accounting Once the estate has been managed to completion, you might need to file a final accounting with the court. A final account is a detailed list of assets received, debts paid, and distributions made. When you submit the account to the court, it must be in balance
Claims Made Against a Will
In some instances, family members may feel that they have not received proper provision from a Will. Sometimes there are disputes with beneficiaries and sometimes even disputes between executors appointed by a Will. At Nexgen Estate Planning Solutions, we can help to resolve these disputes and provide advice as to whether a claim against the estate is viable.
It is important to note that there are strict conditions concerning who can make a claim against a Will and expert legal advice is strongly advised. If you think you are eligible to make a claim, or if you are an Executor defending a claim against the estate by another person, speak to our Specialist Attorney in Wills and Estate law for accurate, professional advice.
Executor Potential Liability
As an executor or administrator, you have a duty to exercise reasonable care when dealing with the estate’s property. You also owe the beneficiaries a duty of loyalty and good faith. If you breach either of these duties, then the beneficiaries could sue you in court. Our advice ensures the probability of such a claim are negligible.
Can a personal representative appoint someone else to act on their behalf?
A personal representative can appoint someone else to act on their behalf by signing a power of attorney. The power of attorney must be specifically for dealing with the administration of the estate.
How can Nexgen Estate Planner help?
If you're administering an estate, you have a lot of responsibility -- not only to the deceased party's legacy, but to the family members and other loved ones named in the will. So, you'll want to make sure it's done properly, which may require the expertise of an estate planning specialist.
We can help in:
- Inform in detail about the rights and responsibilities of an executor;
- Prepare and help complete the forms needed to apply for probate;
- Assist to identify and collect the deceased's assets;
- Advise on the possibility of tax liability;
- Advise about the legal order in which debts must be paid and the remaining assets distributed;
- Explain the legal order of distribution of the estate in a case where there is no will;
- Assist with any claims that may be made against the executor over administration of the estate;
- Help draw up a statement of assets for realisation and distribution to the beneficiaries.
- Contact a Nexgen Estate Planner to help you ensure that wishes of the deceased are honoured and their loved ones are cared for. We’ll ensure this is done efficiently and in accordance with the law.
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