A will is a legal document by which a person can state how they want their properties and assets to be distributed after their death. Writing a will is beneficial as it helps protect the rights of one’s legal heirs and prevent property-related disputes. A will can be typewritten or written by hand. However, it is writing a will by hand is safer and more authentic in case any situation arises. If there are multiple heirs of a person, writing a will can prevent complications and doubts.
What is a will?
A last will or testament refer to a legal document through which a person express how they want their assets and liabilities to be managed and properties transferred or distributed among their beneficiaries after their death. A will prepared by a Hindu, Buddhist, Sikh or Jain is governed by the provisions under the Indian Succession Act, 1925.
Terms related to a will
- Testator: The person who makes a will is the testator.
- Executor: The person(s) named in the will to manage and handle the distribution of assets refer to the executor.
- Beneficiary/legatee: The person(s) or organisations to whom the assets are bequeathed referred to as the beneficiary or legatee.
- Intestate: An individual who dies without a valid will.
- Probate: Will copy obtained, which is certified and sealed by a competent court of law.
- Administrator: A person who manages the division of the deceased person’s assets if there is no will.
Who can write a will?
Under the Indian Succession Act of 1925, any person who has a sound mind and who is not a minor is allowed to make a will. The will is a legal declaration by the person who can name an executor to manage their estate and ensure the property transfer to the intended recipients after they die.
Why do you need a will?
- Writing a will helps you to take care of and protect the rights of your immediate family members, prohibiting certain individuals, whom you want to exclude, to stake a claim in your property.
- It simplifies the process of inheritance of your properties by your legal heirs.
- It helps prevent property disputes as the will clearly states the persons who will receive your property and the share they will receive.
- When a person dies intestate, their assets and properties are distributed according to the Hindu succession laws.
- A will helps you make decisions on who will take care your minor children and pets.
- Besides stating about the distribution of assets, a will allows a person to plan gifts and donations to their preferred charitable institutions.
Sections of a will
- Personal details: This includes the testator’s name, father’s name, home address, date of birth, etc.
- Declaration of date: Mentioning the date of will preparation is crucial.
- Free will validation: One should mention in the will that they are drafting the will by free will and without under any influence or pressure from another person.
- Executor’s details: There should be an executor who implements the will. Thus, the document should specify the executor’s name, address, relationship with the executor, age, etc.
- Guardian’s name for minors: The will may have the names of minors for which the person is the guardian. It may have the name of the guardian that one chooses to provide the legal custody for the children. The guardianship passes automatically to the living parent, if living.
- Assets and beneficiaries details: One should mention the immovable properties or assets with their addresses. The assets can include insurance, bank deposits, mutual funds, etc. The name of the beneficiaries must also be mentioned in the will.
- Signature: The will should be signed by the person who drafts it.
- Witness signature: The will should also be signed by at least two witnesses. Their father’s name and addresses should also be mentioned.
Things to consider when drafting a will
- Before writing a will, one should be ready with a list of their assets and liabilities, which should be categorised into moveable properties, which includes cash, stocks, etc. and immovable properties, which includes land, flats, etc.
- Consider liabilities that would be adjusted against the overall assets.
- One can add heirs as joint holders or nominees to facilitate the transfer of the movable assets.
- Choose an executor by identifying trusted people. They should be younger than the testator as it reduces the chances of their dying before the testator.
- In case heirloom assets, one should specify the beneficiary and state the rationale for a person to receive it.
How to write a will?
Although there is no specified format for a will, one should mention details that are important from a legal perspective.
- Mention the title that clearly reads that it is your last will and testament.
- Declare that you are writing the will in soundness of your mind. Include your legal full name.
- List the assets you own, including properties, bank savings account, fixed deposit, mutual funds, etc.
- Mention the name of the beneficiaries, the person or entity, who will receive your assets.
- Name the executor of the will, the person who will be responsible for managing the division of your assets. Name a guardian of minor children.
- Sign the will in the presence of two persons who will be the witnesses. They will be required to sign and certify that you have signed the document in their presence. Each page of the will must be signed. In case of any correction, you and the witnesses should countersign the same.
- Specify the date and place of signing on the will with the complete addresses and names of the witnesses.
Format of a will
| I, name of the testator _____________son/daughter/wife of Mr (father’s name)________,resident (address), (religion)_______by religion___________, do hereby revoke all my former Wills, codicils, and declare that this is my last Will and testament, I wish to make on_____(Will preparation date)_____ Date of Birth.
I declare that I am writing this will in good health and a sound mind. This Will is made by me without any persuasion or coercion and is my independent decision only. I hereby appoint Mr________ son/ daughter of Mr (father’s name)______, resident of______to be the executor of this Will. In the event Mr__________were to predecease me, then Mr______, will be the executor of this Will. The name of my wife (spouse) is _________. We have ________(number of children) children (names). 1._________ 2._________ I bequeath the following immovable and movable assets to my legal heir(s): Example: 1. One apartment at in city____Address_________ 2. Bank balance of my savings account in bank name ____ (other details) 3. Proceeds of my term insurance policy ___ (policy number) from _____ (insurance company name) 4. Details of jewellery, cash, public provident fund, shares in companies, etc. All the assets are self-acquired and nobody else has any title, right, claim, interest or demand, whatsoever, on these assets or properties. Testator’s signature _______________ Witnesses We hereby attest that the will has been signed by Mr_______as his last will at______(location)_____in our presence. The testator is in sound mind and made this will without any coercion. Signature of witness 1 _________________ Signature of witness 2 _________________ |
How to register a will?
After a will is drafted, it should be registered. By registering a will, one receives its legally valid copy. In case of tampering, it becomes easy as the copy submitted can be compared with original will document. One can also approach the registrar’s office for a copy if the original gets destroyed.
Here’s the process to register a will:
- Consult a lawyer to draft the will correctly, mentioned all the essential details
- Get an appointment for the registration at the office of the sub-registrar.
- Check the rules and regulations in your specific state and pay the registration fees.
- Visit the office of the sub-registrar along with two eligible witnesses.
- Collect the registered copy, which will be available in around a week’s time.
What is a digital will?
A digital will, also known as e-will or an electronic will, refers to a will that is written, signed and attested through electronic mode. It will include details of assets and who the person’s to transfer their assets after their death. In India, digital will are not recognised by the law.
What happens if there is no will?
When a person dies without making a will, that is intestate, there are chances of legal disputes arising over who will inherit their assets. One should note that religion-specific laws would be applicable in such cases when it comes to property distribution.
Male Hindus, Buddhists, Jain and Sikhs
- According to the Hindu Succession Act, 1965, the property will first devolve upon relatives mentioned under Class 1 heirs
- If there are no class 1 heirs, the property will devolve upon Class 2 heirs
- If there no class 2 heirs, the property will devolve upon agnates. These include those who are related entirely through males by virtue of adoption or blood.
- If no agnates are present, the property will devolve upon cognates. These include those related through adoption or blood but not entirely through males.
Female Hindus, Buddhists, Jain or Sikhs
- The property will first devolve upon the husband and sons and daughters. These include any predeceased son or daughter’s children, equally.
- If there are no heirs mentioned above, the property will devolve upon the husband’s heirs
- If there are no heirs on the husband’s side, the property will devolve to the parents
- If the parents are not alive, the property will devolve upon the father’s heirs
- If there are no heirs on the father’s side, the property will devolve upon the mother’s heirs.
Hindu Undivided Family (HUF) as per survivorship
- According to the law, if the Karta passes away, the property will devolve upon the members (those surviving) of four generations
- Even though the heirs are Hindus, the property will not devolve as per the Hindu Succession Act, 1965
- A male or female relative from Class 1 can stake a claim on the property’s share. In such cases, the property will devolve upon that relative as per the Hindu Succession Act, 1965
Christians
- According to the Indian Succession Act, the wife will receive one-third of the property, while the rest will be divided among the children equally. These include any predeceased son or daughter’s children.
- In the absence of wife, the property will be divided equally among the children.
- In the absence of children, the property will be divided equally among the husband’s and wife’s relatives.
- If there are no relatives, the property will devolve upon the deceased’s parents.
Parsis
- According to the Indian Succession Act, the wife will receive half of the property and the children will receive the remaining share.
- In the absence of wife, the property will be divided among children, equally.
- If there are no wife and children, the deceased’s parents will receive the assets.
Muslims
- According to the Shariat, the qazi or judge will undertake the burial expenses and list the assets distributed among the children and wives. As per the Shariat, sons receive twice the share of daughters.
Where to store a will?
The original will must be kept at a place where it can be easily found, such as the cupboard or cabinet. A copy of the document should be given to the legal advisors.
FAQs
Can I write my own will in India?
Yes, you can write your will by including the details that are important from a legal perspective.
What is the validity of a will in Indian law?
There is no specified validity of a will in India.
Is a notarised will legal in India?
There is no need to get a will notarised in India.
Can you write a will in any language?
One can write a will in any language without the need to use any technical jargons.
What is the format for writing a will?
A will does not have any prescribed format. However, it should contain the following sections: Personal details, date of will preparation, executor’s details, beneficiaries’ details, details of assets, signature by self and two witnesses.
What is the benefit of registering a will?
While registering a will is not mandatory, doing so is beneficial as a copy of the will remains with the office of the registry. In case the document is damaged or lost, one can obtain a certified copy from the office. Moreover, one cannot challenge a registered will in court.
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