A will is considered as a legal document or a testament in a written form that entails a set of wishes in regards with several aspects like distribution of assets or finances after a person’s death. After a person’s demise, a will gives clarity to settle legal conundrums. This article will list down the 4 steps on How to make a will in India which is lawfully valid.
The person writing the testament is known as the ‘testator’ who decides the transfer of his assets or wealth to the descendants or anyone else as he deems fit. The person who carries out the proceeding according to the will is known as an ‘executor’. The Indian Succession Act, 1925 enlists provisions is respect with this and is applicable throughout India and in every religion (except Islam).
It should also be noted that executing a will propounds surety and security of the property (movable or immovable) and that it lands to the rightful legal heirs (especially if they are minors). In India, a Will might be recognized as a legal document but it is not necessary to articulate it under legal notes or instruments like stamp paper. Instead, a Will can also be made on a plain paper.
Why is a Will important?
The legal age for executing a will in India is 18 years. Following mentioned are some of the reasons which can be beneficial in order to make a will:
- Asset distribution is like deciding that after the demise, the assets land in rightful hands especially if the descendants are minor. This way even courts cannot interject and a Will can be produced as legal evidence.
- Management of property after death can also be taken care of by the executor according to the Will.
- A Guardian for Children can also be appointed and mentioned in the Will which will legally manifest only those people as the guardian of the children which are listed in the Will.
- Efficiency is also one of the most important factors. Having a Will, will allow the testator to dispose of the legal affairs in an economical and efficient manner.
- Also, if there is a will, then the family members would not have to bear with the legal hassles because it will automatically assign competent parties to have rights to the assets. Hence, there will be a reduction in legal complications.
- Financial Security after the demise will be easily managed. If there is an absence of law then, the assets will be distributed and proportioned according to the law which might raise concerns regarding the security of family members.
- Business Security can also be assured in a Will. This will allow the company or a family business to be passed on to the favorable people.
What are the important Sections in a Will in India?
The following mentioned sections can be used by people who want to make a Will without the help of any lawyer or legal support. They can either use Online templates or mention the following points.
- Declaration at the beginning: This involves using the labels like ‘Last Will/Testament’ as a declaration heading
- Testator’s Personal Details: like name, parent’s name, residential address, age etc.,
- Date of Declaration of Will: The exact date of when your Will was prepared should be mentioned.
- Free Will: It should also be mentioned that the Will is being documented without any external influence or pressure and that it is the free will of the testator.
- Executor’s Personal Details: As mentioned above also, an Executor is the person who will carry out the legal affairs on behalf of the deceased testator. So, his personal details like name, relationship with the testator, age and other basic information.
- Assets and Beneficiaries: The Will should enlist all those assets (movable like bank deposits insurance, mutual funds and other finances or immovable properties) along with the details of those people who will land them, formally known as Beneficiaries.
- Legal Guardian: If there are minor children who should be taken care of after the demise, then the Will should also enlist the personal details of those people who will be appointed as their legal guardian till the children reach their legal age.
- Other: Other last wishes can also be mentioned in the Will like a pet’s guardian or any other message to some people after the demise. The executor will make sure to fulfill these wishes.
- Signature: Attest the Will after specifying the above details.
- Signature of Witnesses: There should be a minimum 2 witnesses whose attestation are required in the Will along with their name and addresses.
Format for Will in India? (Edit it Yourself format)
I, Shri/Smt ………………….. son/daughter/wife of Shri ……………..,resident of …………………., by religion………….., do hereby revoke all my previous Wills (or) Codicils and declare that this is my last Will, which I make on this …….(Date)………………… My Date of Birth is ………….
I declare that I am in good health and possess a sound mind. This Will is made by me without any persuasion or coercion and out of my own independent decision only.
I appoint Shri………………….. Son/daughter of ……………, resident of …………. to be the executor of this Will. In the event Shri…………… were to predecease me, then Shri……………., will be the executor of this Will.
I bequeath the following assets to my Wife Smt……………..
1. My house located at………(address)………
2. Bank balance of my savings account no…………………..with ……………(bank name & bank address)………
3. My Bank fixed deposits in …….(bank name)…..bearing ……..(FD receipt nos)……..
4. The proceeds of my Term insurance policy ….(Policy no)……, from…….(insurance company name)………
5. The contents of bank locker no………, with bank…………, bank address……………
I bequeath the following assets to my son Shri……………
1. Residential Plot no…….., located at…………….
2. My car with registration no……….
3. My mutual fund investments with folio numbers…………………..
4. Any other asset not mentioned in this Will but of which I am the owner.
All the above assets are owned by me. No one else has rights on these properties.
Signature of Testator
We hereby attest that this Will has been signed by Shri………….as his last Will at ………(Place)……… in the joint presence of himself and us. The testator is in sound mind and made this Will without any coercion.
Signature of Witness (1) Signature of Witness (2)
When is a Will Legally Valid?
A Will is a legal instrument which allows the testator to dispose of his assets according to his discretion even after death and not by the Indian Law. Hence, it should be noted that a Will is only valid after the death of the Testator only. The enforceability factor will reside after Testator’s demise and forthwith that the beneficiaries can claim their rights on assets.
At any point during the lifetime, the Testator with his free will can change or alter his Will through ‘Codicil’. A Codicil is another part of the Will that the Testator needs to attest in order to demand alteration in the present Will.
Validity of Free Will
As also mentioned above, the Will should be made without any influence, force, intoxication, coercion otherwise it will be held invalid.
The Testator can also withdraw a Will at any point during his lifetime.
The Testator’s last Will is the one that will be enforceable. One simply cannot make a number of Wills in their lifetimes. Only the last testament will be valid after the demise of the Testator and not any made before that. So, the last Will should include all the points at once.
Will through Legal Guardian
If a person is of unsound mind or doesn’t have any knowledge then a legal guardian is appointed to do the same.
A probate is a replica of a Will, certified by the Court which gives conclusive evidence that the Will is authentic. On the demise of the testator, the executor can apply for probate. The Court will question other heirs of the deceased if they have any objections. If there are no objections then the Court will grant probate. It might take 6 months or a year for the Court to give it. The executor cannot establish any right unless the Court has granted a Probate. Hence, it is an important document and can only be granted to the Executor. The required legal fees need to be paid as well as a stamp duty on the property or properties that is written in the will. The cost of Stamp Duty varies from state to state.
What are the types of Will?
The Indian Succession Act allows two types of Will:
- Privileged Will: These are Wills which are made by the people who serve the country like soldiers. Since they are posted most of the time in an expedition or a war-like scenario then the Privileged Will can be made. This doesn’t require any special formalities like signatures or witnesses and can be made in writing or orally as well.
- Unprivileged Will: Other Wills which are made by the people who do not serve the country are Unprivileged Will. On the contrary, they require several aspects like witnesses, beneficiaries, signatures and executors.
4 steps to make a lawfully valid will in India?
1. The above mentioned essentials should be covered with utmost clarity.
2. The final draft should be ready in accordance with the Testator’s wish. This can also be done by a lawyer or someone else but under the testator’s direction if he, himself is unable to make one.
3. After the final draft is ready, it should be affixed with the signatures of witnesses and the Testator.
4. For asset distribution and property execution purposes, the final Will should be registered and duly stamped.
In India, the Court grants a Probate in order to get the Will executed. A probate is basically a certified replica of the Will that the Court will issue only if there are no objections from the family members or the legal heirs. After that, the execution can be done which will prove the authenticity and genuineness of the Will.
How to register a Will in India?
The registration of the Will gives the legal benefit to the family of the deceased. The registration ensures that the Will is authentic as the Testator himself along with the witnesses and/or beneficiaries goes to the competent authority and affix their signature in front of them. This indicates that the will is authentic and validly executed. Following is the process through which the Will can be notarized:
1. The Testator and Witnesses (2 or more) should visit the office of the Sub-Registrar and pay the required Government fee.
2. Necessary signatures should be made in front of the Sub-Registrar and after a week the registration will be completed. If the Testator is unable to affix the signature, then a thumb print can also be taken.
3. After a week, the registered Will is kept under the custody of the Registrar so that it cannot be tampered/destroyed/mutilated/copied with.
4. Although, Section 18 of Registration Act permits that it is not mandatory for the Will to be registered but registering a Will can be advantageous to the extent that it cannot be tampered with. This is because it requires the express permission of the Testator to execute it. Also, only the Testator can access it freely.
5. It should be noted that the Will shall only be released after his demise to the competent person who produces the Death Certificate.
Read More: Legal Heir Certificate in India for NRIs
How to make a will for inherited property in India?
Usually, all of your property can be left in a Will. Though, a Muslim cannot bequeath by a Will any more than 1/3 of property unless the legal heirs give their permission to exceed this limit. The procedure of executing a Will differs, based on whether you are administered by the Indian Succession Act, 1925 or the Muslim Law of Testamentary Succession
People who are governed by Indian Succession Act, 1925 must follow the process in which the Will must be written and attested with a signature or thumb impression. There should be at least 2 witnesses present. A Will can be written on plain paper and not necessarily on a stamp paper. It is also not essential to be registered.
If you are a Muslim, then the Muslim Law of Testamentary Succession has given a very simple procedure. In this, the Will can either be oral or written. If the Will is written, then it is not important to sign it. The only essential element is the intention. Although oral Wills can be difficult evidence in difficult situations.
FAQ’s on how to make a will in india
How to have an attorney draft a Will in India?
In order to have absence of ambiguities and get clarity on asset distribution, then in that case a lawyer should be hired. One always has an option to make a Will on their own but there are certain legal complexities that only a person with legal knowledge can comprehend especially in cases where there are several assets and worth a lot of money.
How to Execute of Will in Court?
An Executor will carry the procedure according to the Will after the demise of the Executor like distributing wealth or property. Legally, it is not an essential to execute a Will under the Judicial Magistrate. Although, it can be executed in public notary and in the presence of the Magistrate which is advantageous for the rest of the rightful owners to claim their rights.
What is a Probate?
A probate is a certified copy of Will which is sealed by the Court. The Executor appeals the Court for a probate and it is granted only if the rest of the legal heirs doesn’t show any objection in accordance with that. The executor cannot establish any right unless the Court has granted a Probate. Hence, it is an important document and can only be granted to the Executor. The required legal fees need to be paid as well as a stamp duty on the property or properties that is written in the will. The cost of Stamp Duty varies from state to state.
Who can make a Will?
Section 59 of the Indian Succession Act, 1925 allows only those people to make the Will who:
1. Legal Age
2. Sound mind
3. Free Will
In addition to that, a person ordinarily of unsound mind can make a Will during the phase of the soundness of his/her mind or by the appointed Legal Guardian. The section forbids a person from making a Will when in a state of intoxication or illness.
Is it important to register a Will?
It is not important to register a Will. However, if there is a registered Will, then the registrar’s office will keep the Will with themselves and ensure full security.
How much is the cost of making a Will in India?
Legal professionals may charge around Rs.4,000 to Rs.6,000. Experienced counsels may charge lumpsum Rs.10,000 to Rs.15,000 but it can also be drafted without any legal counsel. Get in Touch with our legal experts to get a will drafted for yourself now.