A Will is the most practical first step in estate planning. It is a legal declaration of the intention of a person regarding assets that the individual desires to take effect after his or her death. It is an extremely personal document and showcases an individual's love, care, opinions and feelings towards loved ones. The importance of drawing up a Will is often highlighted as one of the biggest financial planning steps you will take. It clearly states how you want your assets to be distributed when you are no longer physically present. If you don't have a, Will, which means you die intestate, your estate will be distributed according to the succession laws of the country based on your religion, and your property could be distributed differently than what you would like it to be. The laws of succession certainly do not cater to the specific needs of your family
A will or testament is a legal declaration. Section 30 of the Hindu Succession Act is an assertion of the general rule that Hindu may dispose of the property by way of Will. By way of Will the testator provides for the distribution of his property at death. As per the customary Hindu law no coparcener, not even father, can dispose of the will by undivided coparcenary interest in the property, including home. It can be used as mode of succession planning in respect of self-acquired property and testators’ interest in the coparcenary property. Therefore entire interest in ancestral home cannot be bequeathed by any one coparcener on his/her legal heirs.
The will can be used make unequal distribution of property to family members as well as outsiders with different kind safeguard to protect the interest of testator and successors. By way of “Will” testator can provide for protection of minor children and female members by way of life interest and trust. The testator can ensure that any family member shall have right to use the family home during his or her life time and thereafter it will pass on to other legal heirs. This kind of arrangement is called life interest.
Life interest means right to enjoy the property including home, during once life time. This was and is widely used to protect the interest of female members of the family. In this type of arrangement any person is given right to enjoy any particular property mostly home during the life time of that person. After the death of the person in whose favor the life interest was created the property reverts to legal heirs of deceased according the Will or in case there is no Will as per the laws of succession. A life interest can be normally created by a Will or by deeds such as settlement, gift, formation of Trust, etc. There are many types of life interests. It is possible for the owner to reserve a life interest for himself or herself. The owner can also create a life interest in favor of a third party or non-family members.
Who can make a Will and when?
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. As you know, life is quite unpredictable and uncertain. It is always better to prepare a Will and store it safely while you are young and/or in pink of financial and physical health. You don't need to wait till you own lots of wealth to transfer or till you turn 65 to create a Will. You can always revise it as your assets, with old-age comes several physical and mental illnesses. People become incapacitated or even lose their ability to comprehend. A Will created at such an age, when a person might not be in his or her right senses might create misunderstandings, doubts and disputes in the family later. Hence it is advisable to prepare your Will at a relatively young age when you are fit, in order to avoid conflicts later. So, there’s no specific age when you should make a Will as long as you’re a major (18 years of age and above). But in the following circumstances you must consider making one right away.
There could be carious complex situations that can arise in your life going forward like: Married or in a relationship, started a family, a situation of divorce or re-marriage, Terminal illness, and writing a Will under expert guidance which has long term financial implications would be ideal.
Hence, a Will can be said to be the corner stone of estate planning. Hence plan and make a Will.
How to make a will
A will has several parts, which duly completed, make up a complete Will. Though there is no legal or defined format, there is a template, which has been generally used for ages. It’s simple; it’s very logical and derives from common sense.
Let’s look the whole format and some important points while creating a will.
Step 1: Declaration in the beginning: In the first paragraph, you have to declare that you are making this will in your full senses and free from any kind of pressure. You have to mention your name, address, age, etc. at the time of writing the will so that it confirms that you really are, in your senses
Step 2: Details of Property and Documents: The next step is to provide list of items and their current values, like house, land, bank fixed deposits, postal investments, mutual funds, share certificates owned by you. You must also indicate where all these documents are stored by you. In all probability, these are in your bank safe deposit box. Even the will should be stored in there! Make sure, you take the details from the bank manager, about the procedure and rules of releasing your will from the safe deposit after your death. Make sure you communicate it to the executor of the Will or your family members.
Step 3: Details of ownership: At the end of the will, you should mention who should own your assets items and in what proportion, after you have gone. If you are giving your assets to a minor, make sure you appoint a custodian of your assets till the individual you have selected, reaches an adult age. This custodian obviously, has to be a trustworthy person.
Step 4: Signing the Will: At the end, once you complete writing your will, you must sign the will very carefully in presence of at least two independent witnesses, who have to sign after your signature, certifying that you have signed the will in their presence. The date and place also must be indicated clearly at the bottom of the will. It is required to appoint 2 Executors, a person who is responsible for dividing the testator’s wealth among the beneficiaries, who should be known to the Testator and family members and who would take all steps to fulfill the wishes of Testator. Make sure you and the witnesses sign all the pages of the will. One important point while choosing witness is that they should be your friends, neighbors, or your colleagues and not the direct beneficiaries in the Will. They only certify that you yourself have signed the will in their presence and are not a party in making the will. The envelope has to be sealed after completing all the formalities and the seal must bear your signature and the date of sealing. The witnesses need not sign on the seal of the envelope.
Step 5: A Will can be made on a simple piece of paper which can then be notarized with two witnesses.
Will of ________________
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 am a person of sound mind and not affected in any manner by any legal disability while making this Will. I have made and executed this Will of my own accord and sweet will without any dictate, pressure, coercion or influence. I am person of sound mind, good health and not under any intoxication of influence of any one. I have made this Will after fully understanding the true purport, legal meaning and effect thereof.
My family comprises of the following:
Grand children: __________, ____________, ___________.
And With a view to make proper arrangements for the distribution for my properties upon my death, I am desirous of making this Will and Testament as under
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.
A. I bequeath the following assets to my Wife Smt.……………..
1. My house located bought by me from my own funds and located at (address) Flat No. ____ Building Name_________ Floor__________-Area in sq.ft._______ Share Certificate Number_______________standing in my name.
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 Insurance policy …. (Policy no)……, from……. (Insurance company name)………
5. The contents of bank locker no………, with bank…………, bank address……………
6. All the shares & securities that I own in D’mat A/c No._____________ with ______________
7. All Investment in Mutual Funds with ___________MF at Folio No._______________
8. All my Investment in PF, PPF, Super Annuation Policy, Pension Policy with following Details
Nature Institution Number (Folio etc.) Other Details
PF RPF ************
9. Following Jewellary: (Give details with approx. weight)
10. All other assets not listed hereinabove or acquired by me after this date shall also go to my wife
B. 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…………………..
All the above assets are owned by me. No one else has rights on these properties.
I have following relatives to whom I do not wish to give any asset.
IN WITNESS WHEREOF I have hereunto set my hands on this ______ day of ____________, 202__ at Mumbai
Signature of Testator
Signed by the above named Testator as his/her last Will in the presence of us, present at the same time, who in his/her presence and in the presence of each other subscribe our names as witnesses.
We hereby attest that this Will has been signed by Shri………….as his last Will at ……… (Place)……… (Date) in the joint presence of himself and us. The testator is in sound mind and made this Will without any coercion.
Signature of Witness Signature of Witness
Changing the WILL
You can change your will any time you want to. However, make sure that when you make a new will, you mention that this will is the latest and supersedes all earlier wills. If you don’t, it can complicate the situation, cause major confusion, make such matters go to the court of law and take several years before arriving at any final verdict.
Important points while making a Will
1. If possible, have the two witnesses be a doctor and a lawyer. A doctor signing a “Will” won’t raise any question of you, being of unsound mind. The lawyer or CA will vet the will and make sure you don’t make stupid mistakes at the time of writing and signing it.
2. The attesting witness and his or her spouse should not be a beneficiary under the terms of your Will. This might create vested interests and sometimes make your will invalid. Also, make sure the witnesses are younger than you and not very old as your will might be in effect for several years! And you want them to be present in this world
3. Write your will on good quality thick white paper so it doesn’t get spoiled over a period of time. It should be stored in a plastic envelope in full size, without folds.
4. Note that you should keep just one more copy of will and stored separately from the original will. The will must be stored very safely in your bank, in safe deposit box. You must also inform your next of kin, as to where you have stored your will. Do not make many copies of your will.
5. In case of Hindus, it should be clearly stated if the property is inherited or not, because it makes a huge difference, as no ancestral property can be assigned to any person through a will. All rights on inherited property are acquired by birth. So if you inherited a property from your Father, you cannot say in a will, that you want to assign it to person X only! It will go to all your legal heirs as it is “Inherited”
6. A will must always be dated and if more than one will is made, the one with the latest date will nullify all the previous ones. In fact, there should be a statement in your will, nullifying all other previous wills. The pages should be numbered to avoid fraud.
7. The value of assets often fluctuates, so it is better to mention how much each beneficiary will receive, in percentage terms rather than absolute numbers. Unless it is pure cash
8. When should people make a will? At what age on an average? Every adult, no matter what age, should have a Will. Most preferably a person above the age 50 should have a will. And while making a Will a person must be of sound mind.
9. Where should they keep the will when they finish writing it? Should somebody in the family/or friends know where they have kept this paper/will? Keep the original in a safe place where it may be found easily after your death. Leave a copy with the attorney who wrote it for you or with a copy with your family friend, CA or Advocate.
10. Should a husband and wife make a Joint Wills? No it is not advisable to have a joint Will, they should be individual Wills. However “Mirror Wills” are quite common. A mirror Will is when a spouse or partner makes almost identical “Wills”, or even identical “Wills”, leaving for example, everything to each other respectively should one partner perish and if both perish together then direct to children. If they have no children then to a named beneficiary's. This is where major differences often occur say, for example, the husband could leave his possessions and estate to his siblings and the wife leaves her possessions and estate to her siblings.
11. Supposing a person makes a will leaving his/her assets and money not to family but to an outsider or perhaps to a charity – is this will to be honored? Yes, basically a Will is a document that states or directs the will of the person, as to whom he/she wants his/her property to be handled after their death. So the person in whose name the assets are transferred can be any person an outsider or even an charitable trust etc
12. Wills often result in bitterness in families and fragmentation – maybe somebody thinks they have not quite got what they wanted or lesser than the other person. Yes, it might happen in various situations. In order to prevent such happening it is advisable to consult a lawyer or Chartered Accountant who will help you to draft the will in the manner and giving the proper statements as to why only certain assets are given to a particular member instead of others.
13. Do marriage / entering into a civil partnership affect my Will? Yes, if you marry or enter into a civil partnership, your Will is revoked. This is because there is an assumption that you would wish to provide for your new spouse or civil partner. There is an exception to this rule if you have made your Will 'in anticipation of' marriage / entering a civil partnership. If you are in any doubt about this, consult your Solicitor, Lawyer or CA for advice.
14. Do divorce / dissolution of civil partnership affect my Will? Yes, if you divorce or your civil partnership is dissolved, any Will you have made is revoked but only to the extent that your ex-spouse or ex-partner is referred to. For example, any appointment of your ex-spouse or ex-partner as an Executor or beneficiary is revoked. However, your Will may still be valid and, again, you should consult your Solicitor for advice.
Registering a will
Even if not mandatory, it is a good practice to register a will, especially if immovable property is part of what is being bequeathed. Several authorities, such as the municipal corporation, insist on a registered will to transfer immovable property to legal heirs. The registration can be done at the office of the registrar or sub-registrar for a nominal fixed amount. The custody is with the registrar’s office. A will can be written even on plain paper and registered. No stamp duties are payable for writing or registering a will. Registering a will is not mandatory. It only authenticates a will but it can be contested.
Key terms to know:
Ø Testator: The person who makes a will
Ø Executor: The person who is responsible for dividing the testator’s wealth among the beneficiaries
Ø Dying intestate: To die without making a will
Ø Probate: The official proving that a will is authentic or valid by the court
Ø Agnate: Any male relation on the father’s side
Ø Cognate: A relation by blood or descended from a common maternal ancestor
How to avoid disputes over your will
ü Once you’ve made a will, show it to your children/beneficiaries
ü Take a consent letter/ affidavit from them, saying they have seen the will and they agree to it
ü If not, then make sure the will is registered
ü Have at least two witnesses (called attesting witnesses) at the time of signing the will
ü Take an affidavit from attesting witnesses about the same
ü Attach affidavit to the will
Can there ever be a problem for inheritance if there is a legal and well documented will?
Successors can change their mind and can challenge it.