Before its too late-Make your Will

A Will is a very important document for anyone’s life. The death is certain in one’s life, yet people tend to avoid making a Will due to certain self-made reasons- viz. I am too young, I have nothing to give, I will do it later, its too complicated to make a Will, my everything will automatically go to my loved ones and so on.

However, once must think to make his Will, if you do not make a Will, your hard earned assets may not go to your loved one as per your wish, there may be family disputes relating to your assets, your legacy will suffer.

A Will is a legal document declaring your intention and desire as how your assets will be distributed when you are no more.

What is the benefit of making a Will

• Your hard earned assets will go to the persons and in the manner as per your wish.
• You can appoint a Guardian/Trustee for your minor children if any, who will take care of your children in the event of your (and your spouse’s) death. If you (and your spouse) die without a Will, then the Court appoints a Guardian, which you would never wish.
• It is easier to make a Transmission of your asset if there is a Will.
• Nomination is not enough and a nominee is not a legal heir.
• To avoid disputes over your assets.

It is very simple to prepare a Will, it is not required to be made by a lawyer, nor on a Stamp Paper, and may not even be registered, can be altered any time or even withdrawn. It’s the last Will, whether registered or not, which prevails.

So here are a few FAQ which you may have on the Will.

Q. 1 What is a Will?

Ans. A Will is a legal declaration by a person as how his/her assets will be distributed or disposed of after his/her death. A Will can be changed or withdrawn any time during the lifetime of the person. A Will comes into force after the death of the person.

Q.2 Why a Will is required?

Ans.

• You can leave clear instructions for your spouse, family.
• You can appoint a Guardian/ Trustee for your minor children to take care of.
• Make proper financial arrangement for your family, children.
• An Executor can be named in the Will who will take care of the distribution of your assets as per your instructions as in the Will.
• Special provisions can be made for your children having health, matrimonial or financial issues.
• Make transmission of your assets easy.
• To avoid any dispute.
• You can keep provisions for charity, friend if you wish.

Q. 3 Who can make a Will?

Ans.  Any person of the age of majority, having sound mind, and wishing that his legacy to be disposed as per his will, can make a Will.

Q. 4 Who are the parties to the Will?

Ans.

• Testator- the authors of the Will.
• Beneficiaries- to whom the assets are given.
• Executor- The person named in the Will who would distribute the assets as per the intent of the Will after the death of the Testator.
• Witnesses- 2 (two) Witnesses are required to sign the Will.

Q. 5 What are the essentials of a valid Will?

Ans.

• The Will should be made with one’s free will and not under coercion.
• Clear identity of the Testator to be mentioned, as name, age, father’s name, PAN number.
• Declaration by the Testator that the present Will is his last Will and he revokes any other earlier Will, Codicil made by him.
• Clear information about the Beneficiaries and their relation with the Testator.
• Clear instructions for distribution of the Assets among the Beneficiaries.
• Any special provisions for distribution of the assets should be mentioned clearly.
• Mention of the Executor clearly, his name, nationality, age, address, father’s name, PAN, Aadhar Number etc.
• Witnessing by two persons, who will sign in presence of the Testator. The Beneficiaries cannot be the Witnesses.
• Testator to sigh the Will on every page in presence of the Witness.

Q. 6 When is a Will invalid?

Ans. If the Will is not signed by the Testator, not dated, there is no witness, made under coercion, uncertain terms, lack of testamentary capacity, illegal or immoral conditions.

Q. 7 What all assets I can include in my Will?

Ans.

• Real estates, land and buildings
• Cash, bank accounts, money market accounts, Intellectual properties, patent, trade mark, good will, royalties
• bank lockers, jewellery, artwork
• Stocks, bonds, other forms of business owner ships
• Cars, household
• Any valuables

The list above is only an example and is inclusive.

Q. 8 Jointly owned properties, how to be mentioned in the Will?

Ans. The assets can be distributed only to the extent of your share in the Property. Viz. my half share in the land, my one third share in the flat.

Q. 9 Can I name an ancestral immovable property in the Will?

Ans. Yes, if you own it legally/ has come to your possession legally.

Q. 10 Can I name a property situated outside India?

Ans. It is advisable to make a separate Will for your overseas properties, as the properties situated outside India are governed by the law of that country.

Q. 11 When is a Will Valid?

Ans. When you write the Will, sign, date and get it witnessed. It is not necessary to register the Will.

Q. 12 Should I get my Will registered?

Ans. Registration of the Will is not necessary, however, a registered Will has lesser chances of having any legal complications after your death.

Q. 13 How the Will to be registered?

Ans. The Will can be registered with the office of Sub-Registrar, no stamp duty is payable, only the registration fee is to be paid.

Q. 14 Should the Will be on a Stamp Paper?

Ans. No, a Will can be written on a plain white paper.

Q. 15 Which laws in India govern Will?

Ans. In India, Wills are governed by the respective laws of the Religion prevailing in the country, while Hindu, Buddhists, Sikhs, Jains, Parsis and Christians are governed by the Indian Succession Act, 1925, and Muslims are covered by the Muslim Personal Law.

Q. 16 Can I name unborn people in my Will.

Ans. No, any property named in a Will to an unborn person is invalid. However, the property which you leave for an unborn person does not lapse. The person may not exist on the date when the Will was made, the validity depends on whether he exists when the Will becomes operational.

Q. 17 How can I revoke or amend my Will?

Ans. A person can any time alter or revoke his Will if he is of sound mind at that time. A fresh Will can be made, or an addendum/ codicil to the earlier Will can be made.

Q. 18 Can I make more than one Will?

Ans. A person can make any number of Will and any time. It is the last Will, which prevails. Explicit cancellation of the earlier Will not require.

Q. 19 Where to keep the Will document?

Ans. Never in a Bank or private locker. Keep one copy with the Executor of the Will and one with your important documents.

Q. 20 Is it required to update/ amend your Will?

Ans. As time passes, your situation changes, so it is advisable to update your Will in the below situations-

• On acquiring or selling any new and substantial assets.
• Marriage
• Divorce/ separation
• Having children/ grand children

Q. 21 What is a Codicil?

Ans. A Codicil is a document made in relation to a Will, which explains, alters or adds to what is in the Will. A Codicil is an extension of the Will and forms a part it. There may be one or many Codicils, if the person making the Will has several revisions over time. It is suggested – If there are major changes, then instead of a Codicil, you should make a fresh Will (revoking/nullifying all earlier Wills and Codicils).

Q. 22 Who is an Executor of the Will?

Ans. An Executor is named in the Will to be responsible for administering the estate of the Executor after his death. He can take custody of the Will and take the desired actions at the right time.

Q. 23 What are the responsibilities of the Executor?

Ans.

• Collection all the assets of the estate
• Paper work and calculations
• Paying debts, liabilities, taxes and other liabilities attached to the properties
• Distribution the properties to the beneficiaries named in the Will after payment of all the debts and liabilities of the Estates.
• Handle any other day-to- day responsibilities with respect to the Estates.

Q. 24 If there is a nominee in an assets, can a Will transfer an asset to someone else?

Ans. A nominee is not a legal heir. A Will overrides a nomination.

Q. 25 How to appoint Guardian?

Ans. If you have minor children and both the parents are deceased or the spouse is unable to take care of the minor children, the person named in the Will as Guardian becomes the legal guardian of the minor children, who takes care of the children and also the assets, till the time they attain the age of majority.

In case the Guardian is not mentioned in the Will, then the Court may appoint a Guardian for the minor children.

Q. 26 Can I appoint a Trustee in my Will?

Ans. Yes, you can. Trustees are person who legally own and administer property for the benefit of the beneficiaries as per the Trust terms.

Q. 27 Who is an administrator?

Ans. Administrator is appointed by Court to take care and administer the estate of someone who died without leaving a Will. He settles the debts, pays any taxes, funeral expenses of the deceased and meets other expenses out of the assets of the deceased and distributes the remainder to the legal heirs of the deceased according to the procedure of the laws. He is an officer of the Court.

If someone dies without a Will, intestacy rules apply on his assets and the administrator is appointed.

Q. 28 What is Probate of Will?

Ans. Probate of Will is a legal document issued to one or more people by the Probate Registry/ Court authorising to deal with the estate.

It is a process by which the Court states that a Will is valid.

Q. 29 What are the disadvantages of writing a Will?

Ans.

• Privacy may be revealed, if you register the Will.
• Where the circumstances get changed after writing the Will, such as marriage, divorce, birth of children etc, and you have not made required changes in the Will.

Disclaimer: This article has been prepared in good faith on the basis of information available on the date of publication without any independent verification. The Author does not guarantee or warrant the accuracy, reliability, completeness or currency of the information in this publication nor its usefulness in achieving any purpose. The Author will not be liable for any loss, damage, cost or expenses incurred or arising by reason of any person using or relying on information in this publication. Readers are requested to consult a professional before taking any action.

(Author – Sonika Bharati, FCS, LLB, is a Company Secretary in Practice from Delhi and can be contacted at [email protected])