Preparing & Writing a Will in India
As movie follower, we have viewed many cinema’s where the villain incubates a plot to abuse property by producing forged wills or by keeping the lawful beneficiaries oblivious. The scoundrel might likewise attempt to keep the beneficiaries from satisfying the states of the will. Such plots have been transformed into great thrillers, suspense and action motion pictures. In the wake of viewing such films, have we ever considered composition of our own particular will? Likely that it didn't trigger our thought.
Possibly, we are excessively caught up with working and switching occupations for fatter prosperity. We invest the greater part of our time arranging land buys and making riches through stocks and gold. Isn't these deliberations somewhat gone for deserting a rich legacy for our family? We have to pass on it to somebody, ideally through a fitting will.
The importance of writing a will is well understood. In the present day context the consequence of not writing a will can be troublesome to a family at the outset of an unfortunate event. However it is not of a very common instance that the present generation can openly converse with their parents as to the outcomes of not writing a will.
However we can write our own will and in that process only can involve our parents so as to make them understand the importance of writing a will. In the process of writing a will one can plan the allocation of financial resources and also to ensure financial security and growth.
Why the WILL should be written?
- Succession planning is essential to guarantee transfer of riches in a way and at the time according to our choice. It guarantees that wealth is transferred to the individuals we pick, that the interests of weak or of minors are accommodated, that our riches is conveyed without family disputes and that our riches is transferred to trusted individuals who will regard what we have fulfilled.
- A will is a testament that proclaims the expectation of the individual as to his wealth and property which he needs to be executed after his passing. If we die without making a will, our riches is inherited by the beneficiaries as indicated by the legacy laws. In the event that an individual dies without a will, the law of succession applies focused around the religion of the deceased. Since the laws of marriage and succession are the most intricate among the religious laws, legacy issues in India are exceptionally confounded. If there is an occurrence of more than one beneficiary, dissemination of wealth can prompt family disputes.
- A will does not just disseminate riches; it can likewise offer obligations. Who will deal with our kids without we and our companion? Should they be raised by our sibling who is in a financial mess or we need our senior sister to deal with them? One can compose a will selecting a trusted individual as the guardian of their children when not one or the other of the parents survives. One can likewise compose a will for making trusts.
What should be Willed?
- The succession of property is governed by intricate laws of inheritance, religion and customs. The laws additionally differ for men and ladies. A Hindu (which includes Jains, Buddhists and Sikhs) man can compose a will for any property earned and claimed by him. It can be any property for example, jewellery, land, flats, autos and money; actually, any right of a valuable nature. Even liabilities and obligations can be passed along with the assets.
- Notwithstanding, a person must exclude those assets which are not legitimately transferable in his testament. For example, in an inherited property, a Hindu man can only distribute his share in the property through a will.
- Moreover, in Muslim law an individual with heirs is allowed to distribute only one-third of his wealth through a will. The rest two-thirds of the riches is inherited as per the religious laws. The limitation does not apply if the heirs give their assent.
- In case of a rented property, just the rights for the remaining time of the lease can be passed on through a will.
- Both Indian as well as foreign wealth can be passed on in a will. Inheritance of abroad assets is particularly allowed under the Foreign Exchange Management Act. Nonetheless, we have to check the regulations in the foreign jurisdiction to affirm whether any particular approvals are needed for the transfer. Most nations have no such limitations.
When the will should be written?
- An assumption that we need to write a will only if we are old and sick is incorrect. We must create a will early in our life. As a simple principle, if we require insurance then we also need a will as it will help us to allocate our wealth to particular individuals and for specific purposes.
- There is no right or wrong age to compose a will. When we have some specific thoughts on how our wealth is to be dealt with which differ from prevailing succession laws, then we should consider a will.
How the Will should be written?
There is no fixed format for a will. We don't even need a attorney to draft it. Simply we can compose our will on plain paper. But, it will be considered substantial only when it has our signature or thumb impression and has signatures of two witnesses affirming that it is our will. The law does oblige the will to have been made when we are normal and free from any pressure or undue impact.
The primary step would be to begin a thought process around it. The choice on ways to actualize our desires through the wills will rely on many factors, including intricacy of family circumstance, businesses and the stakes involved. It is best to get proficient mastery concerning execution of any succession plan as they would direct on the most suitable answer for each individual's necessities.
Apart from the testator and beneficiaries, a will should also have an executor who is entrusted with the obligation of transferring the property as fancied by the testator.
We ought to select a trusted individual as the executor of our will in the wake of looking for his assent. If we do not seek his authorization ahead of time, there might be no executor for our will if the person declines to acknowledge the obligation after our death. In the event that there is no executor of a will, the court will appoint one.
- Step 1: Declaration in the outset: In the first section, we need to proclaim that we are making this will in our full senses and free from any sort of influence. We need to say our name, location, age, and so forth at the time of composing the will. As the law mandates that only a mentally sound person can write a will, we can attach a certificate from our doctor stating that we were in good health and sound mind while making the will. We can get the doctor to sign our will as a witness.
- Step 2: Details of Documents and Property: The following step is to give rundown of assets and their current values, like land, house, mutual funds, fixed deposits, share certificates and postal investments, owned by us. We should also indicate where all these documents are stored by us. More likely than not, these are in our bank safe deposit box. Indeed, the will should be stored in there. Verify that we take the details from the bank administrator, about the procedure and guidelines of releasing our will from the safe deposit after our demise. We must make sure that we communicate it to the executor of the Will or our relatives.
- Step 3: Details of possession: At the end of the will, we ought to mention who should claim our assets and in what extent and proportion, after we have gone. If we are giving our resources to a minor, verify that we appoint a custodian of our assets till the individual we have chosen, achieves a grown-up age. This custodian obviously, has to be a trustworthy individual.
- Step 4: Signing the Will: At the end, once we finish composing our will, we must sign the will precisely in vicinity of no less than two autonomous witnesses, who need to sign after our signature, guaranteeing that we have marked the will in their vicinity. The date and spot, also must be indicated clearly at the base of the will. Verify we and the witnesses sign all the pages of the will. One important point while picking witness is that they ought to be our companions, neighbors, or our colleagues and not the direct beneficiaries in the Will. They only certify that we ourselves have signed the will in their presence and are not a party in making the will in India. The envelope has to be fixed after completing all the formalities and the seal must bear our signature and the date of fixing. The witnesses need not sign on the seal of the envelope.
What steps to be taken, once the Will is written?
- Disclosure or non-disclosure of the will and its substance is a personal issue. In maximum cases, the will is uncovered just 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 move.
- Simply composing a will is insufficient; we have to make suitable courses of action for its protection and execution. Getting our will registered is one way of ensuring safety of our will while making it easy to establish it as our bonafide testament. A registered will is kept in safe custody of the registrar and cannot easily be tampered with, destroyed, lost or stolen. For better wellbeing of our will, we can also keep a duplicate of our will with the main beneficiary or the executor. For getting a will registered, we need to visit the registrar's office along with our witnesses. A will can likewise be registered by the executor or any beneficiary after the testator's demise. There is no stamp duty obligation for registration of a will. Then again, getting a will registered means that changing or cancelling it will require a time-consuming process. Any subsequent testament will likewise must be registered.
- In the event that we make a will, it is just expected that we may need to transform it with changing elements of our family and our association with the recipients or when we gain new resources or discard some old ones. Minor changes in the will can be put forth through a supplementary statement. It is executed in the same path as a will. If we need to make some major changes in our will, then we should create a new one. If we haven't got our will registered, destroying the old one and writing a fresh will is all that we need to do to revise it. We must make sure that the will clearly mentions the date of creation. The last will supersedes all previous ones.
What happens to the Will after our Death
- Making a will is a straightforward methodology which doesn't oblige any assistance from legal advisors or visits to any legislature office or court, yet the same is not valid for the recipients. When a person leaves behind a will, the recipients or the executor need to get a court order, or probate, confirming the validity of the will.
- A fixed percentage of the total estimation of the wealth is charged as court fee for getting a probate, which differs from state to state. Once an application for a probate is acknowledged, the court issues a notice in newspapers welcoming objections to the legacy claims. Once the application is disposed of, the court issues a probate. However, a probate is not needed for immovable properties of Hindus, except when it is located in West Bengal, Mumbai and Chennai.
Conclusion:
Finally, if we belong to the majority who haven't planned our succession yet, it's the right time to gather our thoughts and compose our will. We must verify that our assets and riches are put to best utilization after we are gone. So, we should please stop procrastinating and scribble down our Will on a paper.