What to do if someone dies with a Will or Intestate
When someone dies and leaves a Will
When someone dies without a Will.
Managing Finances Following the Death
Nexgen works with you whether or not there has been a Will. There are always ownership, business, personal, legal or other matters that require resolution upon any demise. Nexgen works with the family or any individual to achieve that.
Loss of a family member or friend is probably one of the most challenging experiences in life. In addition to the emotional fall out, there are also the practical and financial matters to address. Nexgen Estate Planning Solutions provides bereavement advise for bereaved people to access information and advice about all the practical issues that arise after the death of someone close.
We give you the assurance that on the loss of a near and dear there is somebody to handhold through the process of estate administration and advice on matters thereafter. You may be named as Executor in a Will and need guidance or your loved one may have not left a Will and you need assistance to administer the estate. We will handhold you through the entire process.
There are times when legalities and claims could deny or disturb the inheritance. Nexgen seeks to ensure that such contingencies are minimized to the best possible extent. There could be occasions for immortalizing a name or undertaking a cause or supporting a family. We would be happy to assist the family or those near and dear in achieving these.
In such a situation, you can:
- Transfer responsibility for the administration of the estate to a specialist like Nexgen Estate Planning Solutions who will take care of everything for you
- Use a professional service for just the essential legal processes such as obtaining probate and when dealing with a property
- Do all of the work involved yourself if the estate is simple
In case there is a Will left by the deceased we can help in Will Administration Services which may include any or all of these:
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 ClaimAllow 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.
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.
In case the deceased has passed away without a ‘Will’
In case one of your loved ones has passed away without a will there is a lot of legal and clerical work to be done so that you and other legal heirs can access the wealth or estate left behind.
Over 90% Indian population do not have a Will. If this applies to you, there is a risk that your wishes for your loved ones may not be met. In this situation, the law will determine who benefits from your estate through the rules of intestacy, depending on the applicable Succession Laws which are religion specific in India.
Who can stake a claim?
All your class one legal heirs have equal rights to your assets. In case of Hindus, class one legal heirs include your mother, spouse and children. If any of your children has died, then their children and spouse have an equal share.
If you have no class one legal heir, then your class two legal heirs can stake a claim. Class two heirs include your father, siblings, living children’s grandchildren and sibling’s children, among others.
What is to be done?
If the asset is a
a. Movable Assets
Consolidating Assets: Consolidating the assets is by far the most important and difficult step as this involves making a list of all assets, finding out the details including nomination details in each financial asset.
Informing the Institutions: Consolidating the assets is just the first step. Once you have a list of assets, the next step is to approach each institution to get the funds or assets released. Depending on the type of assets different approach is required.
These include bank deposits, mutual funds and other investments, such as post office schemes, made with financial institutions. At the time of investment, almost all of these require the investor to fill up a nominee name. If the nominations are in place, then, in all likelihood, banks and financial institutions will release the funds, irrespective of the amount, to the nominee mentioned.
But remember that a nominee is only a trustee of the funds, which he is expected to safeguard till such time as the legal heir or beneficiary can be determined and the proceeds can be passed on to him. This means that although the banks or financial institutes release the money to a nominee, other legal heirs can stake claim.
Even if there is no nominee and the amount is fairly small, banks will release the funds up to a limit, provided the person withdrawing the money signs an indemnity stating that he is in possession of the money and will be held responsible for payments in case a more authentic claimant appears. These limits vary from bank to bank, according to their internal policy.
If, however, the funds are in excess of this limit and there is no nominee, then the banks will ask the person staking a claim to produce a succession certificate. “If there is a nominee, then banks will release the funds to him after doing the prescribed documentation. However, if they have any doubts, suspect fraud or anticipate any dissent, they may ask you to produce a succession certificate.
A succession certificate establishes who the legal heirs of the deceased are and gives them the authority to inherit debts, securities and any other assets. The beneficiaries can file a petition for a succession certificate in a district or high court as the two have concurrent jurisdiction. The petition usually mentions the relation of the petitioner with the deceased, details of other surviving legal heirs, the time, date and place of death of the deceased and the fact that the deceased died intestate. The court, after examining the petition, issues a notice to all the respondents. It also issues notice in a newspaper and specifies a time frame (usually one and a half months) within which anyone who has objections may raise them. If no one contests the notice and the court is satisfied then it passes an order to issue a succession certificate to the petitioner. “If there are more than one petitioners, then the court may jointly grant them a certificate, but it will not grant more than one certificate for a single asset.”
Once the assets are released, they can be handed over or transferred to the beneficiary. “Usually the nominee for each asset if different and they are more or less fairly distributed so families settle these matters verbally among themselves. However, if any of the heirs is dissatisfied and takes the matter to the court, then the assets are distributed by the court as per the succession laws applicable to the deceased’s assets, according to the state and religion.
b. Immovable Assets
In case of an immovable property that is not disputed, only the title of ownership has to be changed. This can be done at the relevant district authority under whose jurisdiction the property falls.
To get the holding transferred in your name, you would require a set of documents, such as a formal application and an affidavit, the death certificates of the deceased and any other deceased class one legal heir, relinquishment deeds from legal heirs who are willing to concede their share, indemnity bond and undertaking and anything else that may be demanded.
But if the matter goes to the court then you will have to apply for a ‘Letter of Administration’ to get it transferred, the court will first ask the beneficiaries to determine if the property can be divided physically. For instance, if you own a three-storey house and have three children, then each son can be given one storey although the value of each floor will not be the same. For instance, the first floor may be expensive than the ground floor. The price of the entire property is, thus, evaluated and the cost of each individual share is valued and they are asked to pay each other the difference. If this is not possible, then one heir can buy out the share of the other.
The upper limit of the court fee is fixed in some states. For instance, in case of the Bombay high court it is Rs75,000. Apart from this, you will have to bear the lawyer’s fees and the costs of various transactions. The entire process can take about six months to obtain simple uncontested certificates and permission. Besides, various intermediaries eat into the value of the estate.
Nexgen Estate Planning Solution offers Bereavement Advisory Services which make the process of transfer of assets left behind by your loved ones seamless.
Nexgen has at hand experience, knowledge and the expertise to be the single point for any assistance. To avail these services you need to contact your Nexgen Estate Planner or fill the form below.