Making A Will

A will or testament is a legal document by which a person, the testator, expresses his or her wishes as to how his or her property is to be distributed at death, and names one or more persons, the executor, to manage the estate until its final distribution. For the devolution of property not disposed of by will, see inheritance and intestacy.

You can add/sell assets that are mentioned in your Will. You can change or withdraw your Will at any time. The latest Will is applicable even though an earlier one may be registered (although it is then better to register the latest).

In your Will, you can give or bequeath -

  • everything you bought from your income
  • asset that you inherited without conditions on future use
  • your share of every other asset
  • only 1/3 of your assets, if you are a Muslim.

It is possible that you have appointed nominee(s) for certain assets. Doing this is not enough because a nominee strictly speaking, is not a legal heir. A nominee is someone who takes care of your asset after your death until it is transferred to the real legal heir. If you don’t have a Will, the legal heir is determined by law and could stake a claim from the nominee and disputes could arise. A Will overrides a nomination.

Here are a few good practices in making a Will -

  • Keep your Will simple.
  • In general, the order of preference to distribute  asset to legatees and their alternates is : (1) Spouse (2) Children (3) Parent(s) (4) Brothers/Sisters (5) Other Relatives (6) Friends. Many people prefer giving something to charity too.
  • Preferably don't give a asset to more than one person even if you specify their shares, since that can complicate distribution.
  • You can describe more specifically some assets which don't change often, such as real estate, or which may be confused with others.
  • Don't describe more specifically some assets that change often, such as "shares of X company" or "Y Mutual Fund".
  • Always select alternates to replace legatees. This is because death can come at any time and it's possible that a legatee has died before or along with you.  You may therefore not have a chance to change your Will.
  • Certain persons are required to implement your Will after your death, such as Executors, Guardians, Witnesses etc. These people should preferably be younger than you, since their work starts after your death.
  • After making your Will, if there is any addition to the family or a key legatee or Executor or Guardian or Witness has expired, you should change your Will.
  • Any legatee (and an Executor, if you are a Christian or a Parsi) should not be made a Witness.
  • Keep the Will confidential. Nobody needs to read your Will, including Witnesses. They only witness your signature.

A Will is a legal declaration of the intention of a person (testator) with respect to his property or estate, which he desires to take effect after his death. The following essentials of a Will must be kept in mind:

(i) The Will must be executed by the testator, i.e., the person making the Will (or by some other person in the testator’s presence and under his directions; if it is not possible for the testator to affix his signature, he may also put his thumb impression);

(ii) The signature should be placed in such as manner that it appears that it was intended to give effect to the Will;

(iii) The Will should be signed by the testator in the presence of two witnesses (other than the beneficiaries under a Will), and the witnesses must also attest (i.e., sign).

In India, registration of Wills is not compulsory. A Will is not a compulsorily registerable document under section 17 of the Registration Act, 1908, (Act), and according to section 18 (e) it is the testator’s choice as to whether he wishes to register it. There is no stamp duty payable. But if one chooses to register a Will with the applicable registrar/sub-registrar of assurances, the registration provides evidence that the proper parties had appeared before the registering officer and the latter had attested the same after ascertaining their identity. Once a Will is registered, it is placed in the safe custody of the Registrar and cannot be tampered with, destroyed, mutilated or stolen. However, non-registration of a Will does not lead to any inference against its genuineness. It doesn’t have to be executed before a notary public.

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