August 28, 2019
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August 28, 2019
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4.5 - 52 votes
This guide focuses on what the average person needs to know about making a will: determining the assets to be distributed, and selecting the beneficiaries and executor, being aware of the the process of making a will and exploring the consequences of dying without a will. Please be advised nothing in this document constitutes legal advice and everything here should be taken as informational only.
A will is a legal document that states your last wishes and lists the manner of distribution of your assets after death. Assets include all kids of property including immovable property such as land, houses, farms and movable property such as bank balance, money lying in mutual funds.
If a person dies intestate, or without a will in place, their property must still be distributed. By not leaving a valid will or trust, or transferring property in some other way, such as through insurance, pension benefits, or joint ownership, it is essentially left to inheritance laws of different religions in India to write the person's will for them. This doesn't necessarily mean that their property will go to the state. This only happens in very rare cases where the deceased leaves no surviving relatives, even very distant ones. However, it does mean that the state will make certain assumptions about where a person would like their money and property to go -- assumptions with which a person might not agree.
As an example, if a Hindu male dies without a will his inheritable property devolves upon class 1 heirs which include sons, daughters, widow, mother, son of pre-deceased son and so on and forth. If there are no class 1 heirs the property is distributed amongst class 2 heirs which include father, sister, brother, son's daughter's son etc. If there are no class 1 or class 2 heirs, there are further categories of persons related by blood or adoption on whom the property devolves. Thus, it is a very complex mechanism as specified in the Hindu Succession Act and can often lead to disputes in families.
In India laws of succession are intricate among different religions and inheritance issues are common. In case of several heirs, distribution of assets can often lead to family disputes.
By making a will you can avoid family disputes, ensure guardianship of minor children, control distribution of your assets and reduce legal complications!
Any person who is above the age of 18 and is of a sound mind (i.e. has the capacity to think, reason and understand for oneself) can make a will. The will takes effect only on the death of the person making the will (also known as testator). Making of a will should be a voluntary act, free from coercion, fraud or undue influence.
You can easily make a will yourself using the template of will and testament. However, it is important that the contents of the will are absolutely clear. For instance, mention full names and identity details of persons to identify them and clearly list the assets and proportionate ownership of the beneficiaries under the will to avoid confusion. A will can be made on plain paper and no stamp paper is required. It is also possible to make a handwritten will, however a typed will is preferable since it is more legible and easier to understand and execute.
The will can be a simple document. You should identify yourself clearly in the will as well as declare that you are making the will in your full senses and in sound mind. Thereafter, list all your assets like bank deposits, land, houses, investments etc. and provide the details of which legal heir would own which assets and in what proportion. If assets are to be given to a minor, please also appoint a custodian of the assets till the minor reaches the age of 18.
You can also specify legal guardians for minors in the will i.e. if there are any minor children who should act as their legal guardian in case of death of testator.
Start by identifying your assets and liabilities and deciding which family members or other persons you want to leave them to. You should also choose an executor of the will who will be considered the deemed representative of the person making the will. It is the executor's duty to ensure that the will is executed as per the wishes of the maker of the will. Accordingly, choose a person who is close to you and trustworthy to be appointed as an executor. You can then enter all this information and prepare the will and testament. Once the above is complete, sign the will and also get witnesses to sign it. Witnesses should be above the age of 18 and a minimum of two witnesses need to attest the will.
The witnesses must have seen the testator sign or affix his mark to the Will; or received an acknowledgment from the testator that he has signed the Will; and each witness shall sign the Will in the presence of the testator.
A question that may arise here is whether a will can be valid if it is has no witness signatures - As per the Indian Succession Act Wills are required to have a minimum of two witnesses attesting the Will. The reason is that when a will takes effect, the person who signed it will no longer be around to confirm whether it is a genuine document. However, witnesses who signed the will can come forth and testify regarding its contents as also the mental state of the will maker.
Registration is not required or mandatory for wills, in fact wills do not need to be on stamp paper. In fact, even a hand written will is valid in India. However, it is possible to register the will at the office of the Sub-Registrar upon which it will be kept in his custody.
The advantage is that such a will cannot be easily tampered with and it is less likely to be called into question or contested. Registering a will therefore provides a legal backing to the will in case of disputes. A will can be registered anytime after making it and there is no time limit for registration.
Yes, it is possible to revoke a will and replace it with another. You can in fact change the will as many times as you want to. However, it is important that when you make a new will you mention that it is the most recent one and supersedes earlier wills. If the will was registered, and is revoked, then the subsequent will made by such person should also be registered.
Remember: In case of marriage of a Parsi or Christian testator, his will stands automatically revoked and he needs to make a new one.
Writing a will is not enough, you must ensure that it is kept safely and make appropriate arrangements for the same.