What is a Will ?
As per law, a Will is legal declaration of the intention by the one making it – the testator –with respect to property that he/she desires to be carried into effect after his death. Simply put, a Will is a written document in which an individual specifies how his wealth should be distributed or utilized after his death. in this blog we will learn about the benefits of the blog , How to register a blog .
Benefits of writing a Will
1. Provides the testator an understanding of his/her current financial status and even an opportunity to improve in the remaining life span.
2. Brings clarity about passing of assets among loved ones
3. Avoids disputes within the family and ensures proper distribution is done thus preventing financial and legal hassles later on.
4. Enables provisioning for minor children and children with special needs as per your wish
5. Possible to Enables to disinherit some relatives who are troublemakers
6. Helps address transfer of digital assets
7. Helps address transfer of offshore assets
8. Can specify funeral wishes
9. Can specify wish to donate organs
10. Ensures peace of mind and happiness
Who can make a Will and when ?
a) Any person who is above the age of 18 is eligible to make a Will. He should be of sound mind i.e., capable of understanding his actions and should be free of any influence at the time of writing the Will.
b) As soon as a person is 18 years old he should write a Will As we live in uncertain times where people meet untimely death due to accidents, heart ailments or other lifestyle diseases and even terror attacks
c) Do not wait to create lots of assets / wealth till you turn old like 60 – 65 years of age Because many times people in their old age suffer from physical and mental illness, sometimes they lose their capability to understand.
If will is created at such an age when a person is not in his proper senses may create doubts, misunderstanding and disputes in the family later on.
d) Therefore,there is no specific age when you should make a Will As long you’re a major. But in the following circumstances you must consider making a Will right away
Disadvantages of not writing a Will
a) When you die without writing a Will (called “intestate” in legal language), your assets aredistributed as per Succession Laws applicable to you. India is a diverse country with different Succession laws governing different religions and also different assets.
b) Such succession laws have fixed proportion to distribute properties to family members which may not be as per your wishes. There could be chances of delay in distribution of properties and may lead to legal cases, disputes amongst family membersand not to forget financial distress can also happen till the time beneficiaries get possession of assets.
c) Court would decide who will look after minor children
d) There will be no executor or guardian and appointing another person potentially has the risk of delays, additional expenses and even a loss
e) There could be bickering and fighting within the family over assets turning the environment acrimonious. Your children and/ or spouse would be left fighting legal battles. Certain assets that you wanted to keep within the family, maybe sold.
f) In case of a common disaster, where your whole immediate family passes away; your assets may get passed on to relatives whom may have never spoken to or you were not in good terms with, as against considering passing them on for charity
g) Transmission of moveable and immoveable may be expensive and time consuming
Points to consider while writing a Will
1. A Will can be prepared by anyone who is 18 years of age, of sound mind, and free from any coercion, fraud and undue influence.
2. Use the title ‘Last Will and Testament Of (state your name here)’ to make it clear that the document is your Will and legal. Herein, state your full name, current address, and also mention that you are of sound mental health and under no pressure from any one to make the Will.
3. Name an executor – a person who will secure permission (called probate) from Court for distribution assets as per Will. A trust worthy person should be named as an executor and you must get their permission before nominating them. This is because if they refuse to become an executor later, then there might be no one to execute the Will, leaving it to the court of law to appoint an administrator. Also, it will be a good idea to inform the executor and family members about the location of your Will in order to avoid confusion later.
4. A will can be hand written or typedout.Stamp paper is not necessary. You can write a Will on a plain paper, sign and date it with minimum 2 witnesses and keep it in a secure location. Also, it is not compulsory for one to register a Will with the Registering Authority, but it is advisable to get it registered to avoid litigation later on.
5. While bequeathing assets to any minor children, make sure to appoint a guardian for the assets until such time the minors reach an adult age.
6. It is extremely important for a Will to be simple, precise and clear.
7. It is possible to make changes or minor alterations in a Will if you want to do so (this is called ‘codicil’). However in case there are too many or major changes, it will be better to make a new Will alltogether.
8. Always put a date on your Will. If more than one Will is made then the one having the latest date will supersede all other Wills.
9. Each page of the Will should be serially numbered and signed by the Testator (that is the person making the will) and the Witnesses. This is to prevent the Will being substituted, replaced, or pages being inserted by people intending to commit fraud. At the end of the Will the Testator should indicate the total number of pages in the Will. Corrections if any should be countersigned.
10. While writing a Will along with the laws of the country, one’s religion also plays an important role. For example, in case of Hindus, any assets that have been acquired by oneself can be bequeathed as per one’ wishes. However any inherited property cannot be transferred according to your wish, as the laws of inheritance would apply.
11. Although it is possible to draft a Will on your own, it is always better to take the advice of a trusted lawyer or online will making websites while writing a Will. This will reduce any chances of misinterpretation or litigation from relatives
Who should write online Will ?
• If you have a simple and small family structure and you are not having any business but earning a salary and wealth through the same; you may consider making a Will online if there are no complexities involved.
• Many online Will writing portals are backed by companies providing legal services that have emerged lately in India, and are cost effective. With the growth of nuclear families, the concept of an online Will is gaining popularity.
In most case the process too is very simple…
a) Register on the portal
b) Enter your details in the prescribed form
c) Make payment
d) Receive first draft then finalisation happens and Will is delivered via email or at your address (offered by some companies)
• Also, you have the freedom to revise the online Will (within a given time frame) if you find it is not drafted as per your requirement or to account for any change in circumstances.
• Some Will writing portals also offer add-on services like registration of a Will and appointment of the executor, but it’s not necessary for the customer to get it done by them only.
Who should go for offline Will writing ?
In complex cases like the following, it makes sense to take the offline route to make a Will and hire a lawyer or avail services of legal firm: –
- You are a citizen of another country
2) There is ancestral wealth
3) Assets are substantial
4) There are several claimants to the estate
5) You have re-married
6) You think there is a chance of the Will being contested
7) You have a business
Who should stand as witness to the Will ?
a) Choose witnesses carefully as their purpose is to prove in Courts that the Will is authentic
b) Minimum two witnesses are needed to execute a Will while at least one is needed to prove the Will in court. There is no bar on maximum no of witnesses.
c) Try to choose witnesses who are younger to you due to higher probability of survival. The best practice would be to have a trusted doctor and/or a lawyer as a witness to sign the Will.
d) Remember, it is not mandatory for a witness to read the contents of a Will before signing it; because he/she only confirms that the Will has been signed in his/her presence.
e) A beneficiary cannot be a witness.
Who should be the executor of the Will ?
a) An executor is a person who takes care of your assets as a custodian until they get transferred to the intended beneficiaries. So the role of an executor is very important.
b) It is common practice in India to appoint family members / friends as executors. But executing a Will is not easy as the executor must have legal and finance knowledge plus he has to spend lot of time and effort to get the Will probated and then executes the Will.
c) It is a good idea to appoint someone as your executor who is younger to the testator. Thereby, the executor has chances to outlive the testator.
d) One should avoid appointing a beneficiary as an executor to avoid conflict of interest. But in the case of nuclear families, where the number of members is less, and assets structure is not very complex, then beneficiaries (individuals) can be appointed as executors.
e) Appointing an individual as executor is a cost effective option, as people close to the testator generally do not charge a fee for their services.
f) But before you nominate an individual as your executor always seek his/her permission. This is because if they refuse to become an executor later, then there might be no one to execute the Will, leaving it to the court to appoint an administrator.
g) If you don’t find a competent person as an executor for your Will, professionals such as lawyers, chartered accountants and other corporate entity offering executorship services can be chosen as executor for a fee.
h) If the number of members in family are large or if assets to be distributed are of large value and complex in nature then it is a better idea to appoint corporate entity offering executorship services as your executor.
i) As no individual is perpetual in existence and may also hold a bias, increasingly, people are considering ‘professional executorship and trust companies’, which by law, have perpetual successions and are independent experts in the domain.
Registration of Will
a) Registration of the will is the most important part of the Will making.
b) As stated earlier, it is not mandatory to register a Will but advisable. Will can be registered with the registrar/sub-registrar of assurances in your area by paying a nominal registration fee.
c) The testator has to be personally present at the registrar’s office along with the witnesses for registration. If the registrar/sub-registrar is satisfied with the documents furnished, an entry will be made in the register with the year, month and date mentioned, and you, the testator, will be issued a certified copy.
d) Note that once you Will is registered, it is in the custody of the registrar. Therefore it cannot be tampered, mutilated, stolen or destroyed. You are given only the certified copy.