A power of attorney (POA) or letter of attorney is a written authorization to represent or act on another's behalf in private affairs, business, or some other legal matter. The person authorizing the other to act is the principal, grantor, or donor (of the power), and the one authorized to act is the agent, donee, attorney or appointee.
The appointee can be bestowed with several rights, such as the right to sign a contract on your behalf, the right to take your health care decisions, the right to handle your monetary transactions, the right to sell your property or any other legal right.
As per Indian law, a power of attorney is a legal document that has to be properly framed, using the right legal terminology and setting out the objectives and responsibilities that you wish to authorize the appointee to carry out on your behalf.
Here are some types of power of attorney documents:
A limited (specific) power of attorney gives the appointee very limited powers, to do a specific act, such as authority to sell property on the appointer's behalf.
A general power of attorney authorizes the appointee with several rights and very broad powers, to execute any legal act on behalf of the appointer. This type of a Power of Attorney provides a list of activities that the appointer wants the appointee to perform on his behalf.
A general or limited power of attorney expires in case the principal or appointer becomes incapacitated. A durable power of attorney was created to overcome this limitation. A durable power of attorney does not terminate, if the appointer becomes incapacitated. It still remains effective. However, a durable power of attorney must include specific conditions, which authorize the appointee to survive the incapacity of the appointer. Such a power of attorney comes into effect as soon as it is signed by the appointer, unless restricted by some legal condition.
For a power of attorney document to be legally valid under Indian law, it must be exhaustive in its provisions, properly stamped, executed and attested by a certified notary advocate. Remember, in a court of law, if there is a dispute pertaining to the scope of the power of attorney, the interpretation of the court is always strict. Therefore, the legal document should bestow the responsibilities clearly so that the functions are specific and comprehensive.
The provision to have a Power of Attorney is a boon for NRI's to carry out their operations in India without their presence being required. However with the ease in operations there have been numerous cases of misuse of the POA, hence care should be taken while drafting a POA.
"Where there is a will, there is a relative. Where there isn't a will, there is chaos", Anonymous.
This statement aptly describes the situation when a person dies without leaving a will. As we have seen in the past - including for industrialists - not making a will can lead to family feuds and mud slinging over inheritance. To avoid such a situation, it is important to make a will for a peaceful division of your property. After all, death is certain, but the time is not!
Do you want to leave your wealth and let your loved one's fight with each other to get their shares (a la the Ambanis)? I guess not! If you nominated some one in all the financial products you bought and thought that it will be passed to them legally without any issues, you are living in the world of fantasies (it's a common misconception). You need to create a 'will' to distribute your wealth in the manner you want to, and having nominated someone is not the answer.
A Will is defined as "the legal declaration of the intention of the testator, with respect to his property, which he desires to be carried into effect after his death." In other words, a Will or a Testament means a document made by person whereby he disposes of his property, but such disposal comes into effect only after the death of the testator.
A will can be made by anyone above 21 years of age in India. You can make the will on plain paper in India. It's not legally necessary to make the will on stamp paper. It is advisable to write your will in your own hand writing, as the same can be verified later in case of any doubts raised by relatives. It might happen that according to your family structure and your preferences, you want to divide your wealth unequally or make a provision for a close friend or a faithful servant. This isn't possible if you die without a will. A lot of us feel that talking about "Making a Will" is pretty morbid, and hence, we don't look at it with right attitude.
Why is it so important to make a Will?
A will is so important, that it should be your first step in your financial life. If your family structure is diverse, and you want to leave your wealth to different members of family like you want to, you should prepare your WILL today, not tomorrow, not later. To wit, if you die without preparing a WILL, your wealth will then be distributed as per 'Laws of succession' (Government rules, on how wealth should be divided among family members). A common misconception, is to believe that all the estate is automatically passed on to the spouse, because children and sometimes even relatives can stake a claim to the property. Laws of inheritance and succession, are complicated and diverse in nature, and are different in case of Hindus and Muslims.
Another point you should consider, is the inconvenience caused to your family members because of your laziness, in not making a will for them. In case of a dispute, your family members have to produce the proof about their relationship with and also have to go helter-skelter to lawyers and spent money and energy. Much better then, to gift them some time of yours, and creating a will! This will save them a lot of headache and heartache.
A will has several parts, which duly completed, make up a complete Will. Though there is no legal or defined format, some important points while creating a will are:
Step 1 : Declaration in the beginning
Step 2 : Details of Property and Documents
Step 3 : Details of ownership
Step 4 : Signing the Will
Execution of Will in Court ?
When you are dead, there is someone called an "Executor" who will be responsible for dividing your wealth amongst the beneficiaries and he will make sure the whole process is smooth. It is not legally required to get the will executed in a court of law in presence of a judicial Magistrate in India. However, if you wish, the will can be executed in the presence of Magistrate or the public notary, nominated by the government authorities and sealed in their presence.
Changing the WILL
You can change your will any time you want to. However, make sure that when you make a new will, you mention that this will is the latest and supersedes all earlier wills. If you don’t, it can complicate the situation, cause major confusion, make such matters go to the court of law and take several years before arriving at any final verdict.
Making a Will through Lawyer
'Do-it-yourself' wills often do not contain all the necessary components as required by law and many times ruled as invalid by courts. Anyone who might benefit from the ambiguity of the will can jump in to claim a share and if the courts decide in his/her favour, you would not have had braced for such conclusions and situations.
Probate Of Will In India
Probate means copy of the will certified under the seal of a court of a competent jurisdiction. Probate of a will when granted establishes the Will from the death of the testator and renders valid all intermediate acts of the executor as such. It is conclusive evidence of the validity and due execution of the will and of the testamentary capacity of the testator.
A probate differs from succession certificate. A probate is issued by the court, when a person dies testate i.e.having made a will and the executor or beneficiary applies to the court for grant of probate. in case a person has not made a will his legal heirs will have to apply to the court for grant of a succession certificate which will be given as per applicable laws of inheritance.
To Who Can A Probate Be Granted
Probate can be granted only to the executor appointed by the will. The appointment may be express or implied by necessary implication.
It cannot be grated to any person who is a minor or is of unsound mind, nor to any association of individuals unless it is a company satisfies the conditions prescribed by the rules made by the State Government.
Persons Eligible For Grant Of Letter Of Administration
Where the deceased was a Hindu, Muhammadan, Buddhist Sikh or Jain or an exempted person and has died intestate, the court may grant administration of his estate to any person, who according to the rules for the distribution of the estate applicable for in the case of such deceased would be entitled to the whole or any part of such deceased 's estate. When several of such persons apply for such administration, it shall be the discretion of the court to grant it to any one of them. When no such person applies, it may be granted to a creditor of the deceased.
Letters of administration entitle the administrator to all rights belonging to the intestate as effectively as if the administration has been granted at the moment after his death.
They however do not render valid any intermediate acts of the administrator tending to the damage of the intestate's estate. For obtaining a letter of administration the beneficiary has to apply to the court. The court on receiving satisfactory proof of valid execution of the will issues letter of administration to the beneficiary. The application for letter of administration has to contain the following details:
a. the time of the testator's death
b. that the writing annexed in his last will and testament
c. that it was duly executed
d. the amount of assets which are likely to come to the petitioner's hands, and
e. the petitioner is the executor named in the will