How to make a Will in India

There is no strict template which is to used in drafting of will. Though to prepare a will in India one has to include the following essentials in the will -. You can consult a civil lawyer for making the will on your behalf. Avoid unnecessary property conflicts and legal hassles. Generally people choose to opt to prepare a will without a lawyer in India. Though you can make a will without a lawyer in India and also can get the registration of will done by yourself without a lawyer but it is advisable that a will should be made with the help of lawyer only.

As making a will without a lawyer in India can leave certain ambiguities in the will which makes it difficult to interpret the will. Also, the person preparing will is not aware of the essentials and components required by law in the will. Copy of will which has been certified by the court under its seal is known as Probate. The executor someone who is responsible to execute the will has to file a probate petition in the court of law and if all goes well, the probate takes six months to a year.

No right as executor or legatee can be established unless a court has granted the probate of the Will. The grant of probate can only be made in favor of the executor who has been appointed by the testator while making the will. The cost included in the cost for probate includes the legal cost as well as the cost of stamp duty on the property which is the subject matter of the will.

The stamp duty on the property differs from state to state. The answer to the question is it necessary to register a will is simple. In India, it is not necessary to register a will nor do the Registration Act, makes the registration of will mandatory. So the question arises is when it is not necessary to register a will then why should one go for registration of will in India.

The answer to this is that registration of will provides a legal back to the will in case any dispute to the will arises in future. In case there is any question related to the validity of the will the registration of will, will be very helpful in such a situation. Registration of will also helps in the case where more then one will has been made by the testator of the will.

For instance, if the testator has made two wills on the same date and only one of them is registered then in case of dispute related to validity of both the wills, the one which is registered will be considered valid and shall be executed for the division of property. Thus, will registration should be done as a registered will has more benefits and advantages than the unregistered will.

But simply registering a will is not enough. Topics on Property Dispute Partition Suit. Wills are not mandatorily registered under the Registration Act, and thus both the registered wills and unregistered wills have same effect and even an unregistered will is valid in the court just like a registered will.

The laws also differ for men and women.

A Hindu which also includes Jains, Buddhists and Sikhs man can write a will for any property earned and owned by him. These wills need to be signed by the testator the person making the will in the presence of at least two witnesses who also sign the will. These wills can be revoked by writing a new will or destroying the old one. If the person writes the entire will with his own hands, it does not need to be signed by any witness.

These wills can also be written by another person. Such wills can be revoked by an unprivileged will. For example, one can write a will which will come into force if the person dies during a particular period. One can also leave a property for a person subject to fulfilment of certain condition such as marriage and attaining certain age.

However, if one writes a will with illegal or immoral condition, it is not considered a valid one. Such wills come into effect after the death of all the testators. Any of the testators can revoke the will during his lifetime even after the death of the other. For example, a couple can write a mutual will which makes the survivor the sole owner of their wealth. For the sake of convenience, individuals who have properties in more than one country execute separate wills for properties in different nations. However, one needs to prove the intent.

However, a person cannot include those assets which are not legally transferable in his testament. Let's assume that a person has Rs 1 lakh in cash earned by him and Rs 5 lakh inherited from his father. He is free to give only the Rs 1 lakh at his will. If he has four legal heirs, the Rs 5 lakh will have five claimants one being the person himself. So his share in the inherited money is only Rs 1 lakh. He can give his share in the inherited asset to anyone he wants. In contrast, a Hindu woman has absolute ownership of all earned as well as inherited property.

She can write a will for her entire property. The Muslim law allows an individual with heirs to distribute only one-third of his wealth through a will.

Importance of will and some essential points to be considered while making a will

The rest two-thirds of the wealth is inherited according to the religious laws. The limitation does not apply if the heirs give their consent. In case of a leased property, only the rights for the remaining period of the lease can be passed on through a will. Writing a Testament An assumption that you need to write a will only if you are sick or old is as correct as the assumption that people die only of old age. You should create a will early in your life. As a simple rule, if you need insurance, you also need a will as it will help you allocate wealth to specific people and for certain purposes.

There is no fixed format for a will.

Will: Writing a will? Avoid these mistakes - Times of India

You don't even need a lawyer to draft it. Just write your will on plain paper or even a leaf from your journal. However, it will be considered valid only when it has your signature or thumb impression and has signatures of two witnesses certifying that it is your will.

The law does require the will to have been made when you are sane and free from any duress or undue influence. Of course, a minor cannot dispose of his property through a will. The decision on ways to implement your desires through use of wills, trusts, etc.

It is best to get professional expertise when it comes to implementation of any succession plan as they would guide on the most suitable solution for each individual's needs," says Ghosh. You should appoint only a trusted person as the executor of your will after seeking his consent. If you do not seek his permission in advance, there might be no executor for your will if the person refuses to accept the responsibility after your demise.

If there is no executor of a will, the court will appoint one. After making your will, should you disclose it to others? In many cases, the will is revealed only after death. In some cases, the beneficiaries know during the life of the testator as to what they will get. This certainly enables a smooth transition," says Vanvari.

Safety Net Just writing a will is not enough; you need to make appropriate arrangements for its safekeeping and execution. Getting your will registered is one way of ensuring safety of your will while making it easy to establish it as your genuine testament. A registered will is kept in safe custody of the registrar and cannot ordinarily be tampered with, destroyed, lost or stolen. For better safety of your will, you can also keep a copy of your will with the main beneficiary or the executor.

For getting a will registered, you will have to visit the registrar's office along with your witnesses. A will can also be registered by the executor or any beneficiary after the testator's demise. There is no stamp duty for registration of a will. Getting your will registered is one way of ensuring its safety.

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It will also make it easy to prove that the will is genuine. However, a registered will is difficult to be challenged for its authenticity. If the will is excluding some heirs from the inheritance then the reasons for such exclusion may be explained to avoid a speculative challenge," says Kaviraj Singh, managing partner, Trustman and Co.

However, getting a will registered means that changing or cancelling it will require a time-consuming process. Any subsequent testament will also have to be registered. As the law mandates that only a mentally sound person can write a will, you can attach a certificate from a doctor saying that you were in good health and sound mind while making the will. You can get the doctor to sign your will as a witness.

If you fear that someone can challenge the genuineness of your testament, you should also affix your thumb impression on the last page. Scope for Revisions If you make a will, it is only expected that you might want to change it with changing dynamics of your family and your relationship with the beneficiaries or when you acquire new assets or dispose of some old ones.

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Minor changes in the will can be made through a supplementary statement, known as a codicil in legalese. It is executed in the same way as a will. If you need to make some major changes in your will, create a new one. If you haven't got your will registered, destroying the old one and writing a fresh will is all that you need to do to revise it.

Make sure that the will clearly mentions the date of creation. The last will supersedes all earlier ones. Succession Route Making a will is a simple process which doesn't require any help from lawyers or visits to any government office or court, but the same is not true for the beneficiaries. In contrast, a succession certificate is required when a person dies without writing a will. Write your will in your style on any piece of paper. A fixed percentage of the total value of the assets is charged as court fee for obtaining a probate, which differs from state to state.

Once an application for a probate is accepted, the court issues a notice in newspapers inviting objections to the inheritance claims. Once the application is disposed of, the court issues a probate. However, a probate is not required for immovable properties of Hindus, except when it is located in West Bengal, Mumbai and Chennai. What if a person inherits properties in other countries? Inheritance of overseas assets is specifically permitted under the Foreign Exchange Management Act. However, you need to check the foreign exchange regulations in the overseas jurisdiction to confirm whether any specific approvals are required for the transfer.

Most countries have no such restrictions," says Vanvari. This is making people aware about issues that the heirs may face if there is no succession planning. An increasing number of our clients ask for succession planning, but this segment is still small," says Kalwani of BNP Paribas.

So if you belong to the majority who haven't planned their succession yet, it's time to collect your thoughts and write your will.