Leaving A Mark Before That Final Journey: The Last Will & Testament

For many of us, our lives revolve around our loved ones. Family, friends, business are all part of definitions of who we are. We’ve seen our share of how things can go horribly wrong and some unpleasant family disputes that happen when someone dies without leaving proper instructions.

No human gets to predict when or how they will meet their maker in the end, which is why ensuring the care and protection of our loved ones is one of the most important decisions we must make and execute before a tragedy befalls us.

Supporting Your Loved Ones Even After Your Passing

There are many ways in which you could achieve this. But the simplest and most efficient way would be to leave behind a well drafted Will. A Will, in legal terms, is a document using which you identify or name people or institutions, to receive your assets and other worldly possessions after your death. In other words, it is a document that regulates others’ rights on a person’s property after his/her death. Such individuals and institutions who receive assets via nominations are legally referred to as ‘Beneficiaries’. And the person who creates a Will is called as a ‘Testator/Principal’.

Businessman with document, signing a contract with pen

In some cases, testators appoint an ‘Executor’, who is essentially a person tasked with the job of ensuring that everything a Will states is carried out or executed. Should the Testator so wish, the Executor may or may not be a beneficiary in the Will. Appointing an Executor is optional. Wills without such an entity are still valid.

In most cases, Executors are compensated for the job they do. If the Executor is also a beneficiary, (s)he may be given payment in the form of some inheritance. There are some risks associated with naming a beneficiary as an Executor as conflicts between the beneficiaries could crop up. Other beneficiaries could team up and petition the court to have the Executor removed. To avoid this, it is best to appoint a co-Executor, should you chose to make your primary Executor a beneficiary in your Will.

Benefits Of Making A Will

Benefits of making a WILL

Not to sound morbid, but dying without a Will makes your death Intestate. Which means that the Indian Intestacy Laws step in and decide which of your relatives gets how much of your assets. This could be totally against your wishes and it would also leave out important people if they are not related to you in a way the law wants. This is why you need to understand the many benefits of creating a Will. Here are some of them;

  • Prevents the law from governing the distribution of your assets. Your possessions will be distributed to people or institutions of your choice alone, if you leave instructions through a Will.
  • Family disputes can be avoided. Long lost relatives will be stopped from barging in and staking claims on your hard earned assets and chances of elderly family members getting pushed aside are greatly reduced.
  • Care of minors and senior citizens in the family can be arranged for through a Will. You can appoint guardians for dependent and geriatric family members which may otherwise not happen.
  • All your assets will be revealed. In case you had property, assets or money lying around that nobody was aware of, it will be unaccounted if you died without a Will.
  • Debts and liabilities would be handled better. If you have loans or other liabilities, you can leave instructions on how they should be tackled. Intestacy laws may not handle your debts efficiently.
  • Nothing will go to charity unless you willfully express it. Intestacy laws do not account for donations to charity. Such donations can be made only through your Will.

How Can A Will Be Created?

Conventionally, the age old practice was that the patriarch of the family would write a document in his own hand detailing how his assets would be split. The document would then be kept in a safe place and a trusted aide, often a non-family member, would be made aware of its existence.

Over the years, this method changed slightly and people started approaching lawyers to draft more legally sound documents to oversee the distribution of their assets. This method does have benefits over the formerly discussed method.

As per the Indian Law, any document signed by a person discussing the distribution of his/her assets after his/her death can be considered a valid Will, if the document appears legit and is free of anomalies. These days you can also find ready-made templates on the Internet which can be customized to create a Will of your own. Off-late quite a few service providers are offering ‘online e-Will’ drafting services too.

What Can Make A Person’s Will Invalid?

As per the law, many things can make a handwritten/printed Will invalid. So if you are attempting to create one without professional assistance (which we do not recommend), keep the following things in mind.

  • A printed Will should not contain handwritten content anywhere in it.
  • In a handwritten Will, the writing should be consistent. Two different handwritings or even what appears to be minorly different handwritings will invalidate the Will immediately.
  • Passing on complete power of one asset to more than one individuals is seen as an anomaly and should not happen.
  • Incomplete addresses, contact information and names are seen with suspicion and should be avoided.

Registering A Will

Although it is not mandatory to register a Will, it is strongly recommended. Registering your Will or any legal document for that matter, is like placing a seal of authenticity on it. It means that the chances that your Will could be challenged for forgery is greatly reduced. In short, it makes it a solid, indisputable document.

The next big advantage is that the Registrar’s office gets to keep a copy of your Will. This ensures that nobody gets to tamper with its contents. Only the Testator or an agent or the Registrar himself can withdraw the document from the Registrar’s office, making it one of the best ways to safe-keep a document of vital importance.

While courts have been known to accept Holographic or handwritten Wills, experts strongly argue that getting your Will registered is one of the wisest decisions.

The Final Word

Given how little say we have over how and when we die, it is only sensible that we make wise decisions during our time alive. Our request to all the readers here would be that you waste no time in making a Will if you are over 18 years of age.

Should you choose to create a Will using one of the online tools, ensure that such a tool is strongly backed by a strong team of legal experts. Irrespective of what method you pick, we urge every reader to create a Will of your own without much delay. You may be a student, or a young parent or a senior citizen, but the significance of creating a Will remains unaltered for every person who is legally an adult.

We hope you found this article useful and we wish all our readers the very best for their future. Cheers!

About the Author

This is a guest post which has been prepared by the team of LegalDesk.com. LegalDesk is a Bangalore based online platform for creating legal documents like Will, Rental Agreements, Affidavits, Agreements, MoUs, Name Change Affidavits and many more.

(Kindly note that Relakhs.com is not associated with LegalDesk. This post is for information purposes only. This is a guest post and NOT a sponsored one. We have not received any monetary benefit for publishing this article.)

(Image procured from Depositphotos.com. Featured Image courtesy of Mister GC at FreeDigitalPhotos.net) (Post Published Date : 07-April-2016)

  • Venkateswara Rao D says:

    Very informative and helpful for anyone who is not familiar with this subject. I appreciate the author for coming out with such an article useful for all.

  • Thiagarajan R says:

    Your article on creating a WILL is very useful for a common man. I have a few questions.
    1. Is it necessary to make exact description of an Asset OR with enough minimum details to denote unambiguously the asset. Eg.
    (i) All under a customer id of a bank instead of the account number of Savings Account, Fixed Deposit and other Accounts, DMAT Account etc
    (ii) All Shares etc. with DP and Account id with a depository instead of name and quantity
    (iii) All Mutual Fund units with an AMC or all AMCs with the PAN no., E-Mail id etc. Or Folio number.
    This is because over a period, some in the same category will get added or removed
    2. If I want to give all assets in my name to a single person, can I mention as “All” or do I have to mention individual Assets.
    3. Can I mention that in case the person I am giving to precedes before me OR after that person’s life the assets have to be distributed to some other named persons.
    I would appreciate if you can clarify the above
    Thiagarajan

  • HARISHA C SHETTY. says:

    This is one of the top and best suggestions given in the relakhs.com, one should follow the methods given in this article. Many Many thanks to all the members who helped to draft this article.

  • SANDIP ROY says:

    My uncle who was bachelor and he adopt me as a legal son and gave all the movable and immovable properties.the tax bill has shown his name but he died 2006.the property did not have any gift deed (Patta) and I have reply from RR office by giving RTI.now I wish to do mutation of the property but concern authority i.e. KMC ask patta from me which is unable to give.now my question is there any provision to do mutation without patta? If so please send me the rules so that I can show to KMC.
    Regards
    Sandip Roy

    • Sreekanth Reddy says:

      Dear Sandip,
      If Property Taxes have been paid on your Uncle’s name that menas Patta/Khatha is already in his name.
      If you are his legal heir / successor, you can submit relevant document(s) to the concerned civic body revenue office and get your name updated in Patta (Mutation).

      Kindly read :
      * How to get Mutation of property done?

  • Raj says:

    First of all thanks a lot for the article.

    1) I am planning to make a will and Notarized in USA. Is it good and valid in India?

    2) My Father bought a property(registered in his name) in India with my money. What is the best option to transfer to me(i.e. gift or will)? since the government registration cost is around 5% of the value.

  • Monika says:

    Sir

    My mother wants to make me the sole beneficiary as well as the executioner of her will. Can this create any issues later? Please note that I am her only child and my father has already expired.

    Thanks
    Monika

  • Avoy Sarkar says:

    My father died on 18th -Feb-2015,At first my younger brother first setting partner firm engage meet for its just power for executed for buyers agreement no of men 20 for new flat registration.and liability for execute after one month delivery.let me us involve property 5 years 5 month taking about any document power individual person not identify.in any interest my rights share any profit of consideration just sign before such visit of site.first time visit of side 10 minute I am sake. Before my brother executed other property in a secretly long time run but any body does not knowledge my mother /sister.let us involved large money invest such partner but owner part have not declear.registration.such document not valid.for value of money such registration fee.income tax.services tax save partner.my brother special arrange my mother outside for conveyance 3rd july-15 power sign.on our behalf such second term after seven month such certify copy for favour firm partner Rs.50/- Rupees Three Coeres fifty lakh only)Rs.3.5/- such relief and partner one year such silently property share convert.stack-in-trade.DPN Builders.

  • PULAKESH MUHURI says:

    dear manoj
    you have written so nicely that I find a ray of hope somewhere in my case. My father died 15th August last year 2015 and my mother died 5 months later feb 2016. My father had left a will written in his diary in his own handwriting and signed duly below dated ( 9th aug 2009).following are the features

    1. He didnt keep any witness to his will.
    2. the property has been acquired by his own.Although he has agricultural land in his native place in a village he didn’t mention anything about it in the will.
    3. are witnesses at all necessary? If a person writes on a boarding pass from where he shall get witnesses? a person may not always get witness and one might not agree to be a witness with the fear of visiting court every now and then?
    3.He has expressed his wish that the ground floor of our house which has 4 rooms kitchen bathroom and latrine to be enjoyed by his grandson from his late eldest son who died in 2008.
    4. he wanted me (his second son) to occupy and enjoy the first floor same as the ground floor and a room which was made by me at the third floor.he had kept a room for my mother and had expressed his wish that it could be possesed by me only after her demise.That his other children, grandsons and granddaughters may come and stay here and myself to take care of them and hospitality.
    5. He wanted his youngest son to enjoy the a piece of land adjacent to his house and a fixed deposit of 3 lakhs.
    6. he has 4 daughters whom he has given money on different occasions but has not mentioned anything in his WILL regarding their rights on this property.
    kindly let me know
    1) can and should i get this will registered?
    2) are witnesses at all necessary if the person is writing in his own handwriting and if he has signed?
    It was read out to my sisters and they have neither objected to it nor agreed to it.The husband of my second sister is a lawyer and has been instigating them against me. since I stayed in this house I and my nephew had looked after my parents since last 5 years.
    I shall be highly grateful to you if you kindly let me know how to proceed about it?awaiting your reply.

    • LegalDesk says:

      To answer your question there are 2 requirements for a valid will in India:-

      a) Signature of the Person making the will
      b) Signature of the Witnesses to the will in the presence of the person making the will.

      Therefore the will requires to have signature of the witnesses as per the requirement of Section 63 of the Indian Succession Act,1925.

  • Ramya says:

    If father drafts a will making his one of the son as beneficiary,is it required to collect a consent letter from rest of his kids mentioning no objection ( assumingly father got got property from his father )

    • LegalDesk says:

      If it is an ancestral property, all the legal heirs will have equal rights over the property. So, it is usually not recommended to make one kid alone as the beneficiary. Even if he wants to do so, a consent from the others saying that they have no objection is advisable.
      Had it been a self acquired property, the father could have made any of his favourite sons as the beneficiary and the other sons cannot demand any share in it.

  • Sai says:

    Quote-“Secondly nomination is simple and effective medium to bequeath rights/benefits in assets to nominee upon demise” looks not correct. As for my understanding, nominee is only able to claim assets as a trustee, but not beneficiary. Subsequent distribution of assets (trusted to nominee) shall be among all legal heirs. So nomination cannot be equated with WILL or SETTLEMENT DEED. Nomination can ensure hassle-free transfer of assets in nominee’s name, but only till any further claims by legal heirs through court litigation. Hence suggest to make WILL, without depending on nomination only.

    • Dear Sai,
      I believe that Manoaj is just trying to say that nomination is a simple form of transferring assets but has its own limitations.
      He also mentioned that ‘WILL overrides nominations’.
      I agree with you that making WILL is the best way to transfer the rights/assets/benefits.

  • manoaj says:

    Will is great innovation of mankind as far as being testamentary instrument.
    But, it has its own difficulties, as a person becomes elderly, take efforts to make settlement deed instead of will. The whole thing will cost not more than Rs15000. Secondly nomination is simple and effective medium to bequeath rights/benefits in assets to nominee upon demise. Lastly, identify which personal law you fall under.

    If person dies interstate then law of inheritance shall operate. Inheritance depends on two factors one is birth second is how the person gets married. Example born as Hindu, and the father and mother gets married in Hindu marriages act Hindu succession act shall apply.

    In other cases, Indian succession act and special marriages act may apply. Will need not be registered. Will can be even written on the boarding passes of flight or by email sent to two people other than the executor. But unregistered will can be contested in courts. Hence it’s strictly advised to register the Will with or without an executor. If there is no executor or if any or all executors don’t execute court may grant letter of administration. In the event there are executors they may execute the Will. Will becomes live after death of testator.

    Negative about Will is stamp duty has to be paid by the beneficiaries in the court to probate. Christians don’t register or probate as family law provides this option, but can be contested in court on validity.

    Latest Will, be considered as last Will. Minimum two witnesses be there in the Will. Will must be clear precise and without ambiguity. Will shall override nominations.

    In circumstances where there is a Will and the Will doesn’t cover properties acquired or received after creation of the Will a legal heir and succession need to applied depending on circumstances of case. only in pondicherry, courts offer legal hiership. Will shall override personal laws. What happens if Will is registered or written outside India? Then for Will to operate the property shall have pecuniary & territorial jurisdiction in India.

    MR X, an Indian but is US citizen, May write a Will, Where a property falls in India, then register of courts shall determine the jurisdiction. High courts shall have power to probate. Where the property doesn’t fall under high courts jurisdiction such Will need not be probated. A property falling under poonamalle court is inferior court than Madras high court, there is no need to be probated.

    If the same is foreign Will. However, in same case person has bank account in USA, then if not nominated family shall not apply for those account which aren’t covered by Will, an Apostille from MEA is taken India or from external affair ministry of that country of demise and sent to those banks. Banks shall transmit the funds and investment to only son or step son or wife and not the mother. In India first class heirs includes wife, mother and children.

    • Dear Manoaj,
      Thank you so much for sharing detailed write-up about WILLs.
      So, regarding ‘foreign will’, are the rules same for all types of religions? (or) it does not matter?

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