How to Draft a Will & Its Importance
Do you want to leave your wealth
and let your loved one’s fight with each other to get their shares (a la the
Ambanis!)? I guess not! If you nominated some one in all the financial products you bought
and thought that it will be passed to them legally without any issues, you are
living in the world of fantasies (It’s a common misconception). You need to
create a WILL to distribute your wealth in the manner you want to, and having
nominated someone ain’t the answer
A will can be made by anyone above 21 years of age
in India. You can make the will on plain paper in India. It’s not legally
necessary to make the will on stamp paper. It is advisable to write your will
in your own hand writing, as the same can be verified later in case of any
doubts raised by relatives. It might happen that according to your family
structure and your preferences, you want to divide your wealth unequally or
make a provision for a close friend or a faithful servant. This isn’t possible
if you die without a will. A lot of us feel that talking about “Making a Will”
is pretty morbid, and hence, we don’t look at it with right attitude.
Why is it so important to make a Will?
A will is so important, that it should be your
first step in your financial life. If your family structure is diverse, and you
want to leave your wealth to different members of family like you want to, you
should prepare your WILL today, not tomorrow, not later. To wit, if you die without preparing a WILL,
your wealth will then be distributed as per ‘Laws of succession’ (Government
rules, on how wealth should be divided among family members). A common
misconception, is to believe that all the estate is automatically passed on to
the spouse, because children and sometimes even relatives can stake a claim to
the property. Laws of inheritance and succession, are complicated and diverse
in nature, and are different in case of Hindus and Muslims.
Another point you should consider, is the
inconvenience caused to your family members because of your laziness, in not making a will for them. In case of a dispute,
your family members have to produce the proof about their relationship with and
also have to go helter-skelter to lawyers and spent money and energy. Much
better then, to gift them some time of yours, and creating a will! This will
save them a lot of headache.
How do you 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 . I am sure, they’ll be pretty
interested in this
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. 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.
Execution of Will in Court ?
When you are dead, there is someone called an
“Executor” who will be responsible for dividing your wealth amongst the
beneficiaries and he will make sure the whole process is smooth (You must have
seen this in Hindi movies). It is not legally required to get the will executed
in a court of law in presence of a judicial Magistrate in India. However, if
you wish, the will can be executed in the presence of Magistrate or the public
notary, nominated by the government authorities and sealed in their presence.
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.
Making a Will through Lawyer
“Do-it-yourself” wills often do not contain all the necessary components as required by
law and many times ruled as invalid by courts (for example no signatures from
witness or no witness at all). Many a time, it can happen that while
creating the will, you use such ambiguous language that it results in lengthy
legal battles (“My House should go to Sunita.” Now if both mother and wife are
called Sunita, which Sunita ought to get it?. Anyone who might benefit from the
ambiguity of the will can jump in to claim a share! And if the courts decide in
his/her favour, you wont like that situation (not that, you’ll be around!)
What is a Probate and it’s importance?
A probate is nothing but a copy of will, certified
under the seal of court. The executor (someone who is responsible to execute
the will) has to file a probate petition in the court of law and if all goes
well, the probate takes six months to a year. No right as executor or legatee
can be established unless a court has granted the probate of the Will. Probate
can be granted only to the executor appointed by the Will. The cost of getting
a probate includes legal fees as well as stamp duty on the value of the
property being willed. The stamp duty varies from state to state. Probate is
very important in case of Real Estate. As per Sundar, a reader of this blog…
Legal heirs to get possession of the property from
the nominees have to go through a legal process called probate. In Maharashtra
this means, the will have to be submitted to Registrar and one will have to
obtain a probate. The Registrar may ask the claimants to put an advertisement
in newspaper to ensure that they will not be contested. They may even ask the
witnesses who have signed the will to come to their office and sign documents.
After all this, and some court affidavits, the claimants have to pay the
necessary tax to the state govt. which is hefty and based on property value.
After Goverments takes its cut, then finally the probate order is given. Only
then will the legal heirs get their property. Note that, probate requirements differ
from state to state. Hence even when making a will a Lawyer should be
consulted. I know of fights between Nominees and Legal Heirs. Roadblocks put up
by Goverment ( some times they ask for Registered Will etc.). So just writing a
will is not the end of the story. Better consult a lawyer before drawing a
will.
Further please note especially in case of land or
house property, the society will not transfer the flat without a probate and
tax paid certificate. Many times, a prospective buyer will not buy a flat or
land, if the holding is not clear and if the property had not been cleanly
transferred and if there are disputes between nominees and legal heirs.
Flat may still stay in the dead person’s name till their heirs and
nominees settle their disputes. Till then, the flat may be used by Nominees or
any other person. But Society will not transfer the flat to prospective buyer
till the process of probate is settled first. Hence such property cannot be
sold easily. Please proceed with great care in this matter.
Important points while making a Will
·
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, will vet the will and make sure you dont make stupid
mistakes at the time of writing and signing it.
·
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 some times 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
·
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.
·
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.
·
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”
·
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.
·
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.
YOU CAN
CALL US IF YOU NEED HELP IN DRAFTING YOUR WILL
Phone: 8108603939,9820276434
- VAIDYA & VAIDYA WEALTH ADVISORS
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