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  • Writer's pictureSahastha

Estate Planning – Drafting a Will

Updated: Oct 4, 2023

Estate planning is a subject that people usually avoid; well it’s just not very fun to think about. Estate planning gives you direction for distribution of your property after you. One of the method of estate planning is creating a Will. A Will is a legal declaration of a person on a document regarding the distribution of his assets after his death. But if you have significant amount of wealth you’d want to leave to your kid, spouse, or other relative. The absence of a will can complicate things.

Before we get into the specifics, there are few pointers I’d like to highlight about will.

What is a will? : A will is a declaration of intention with respect to transfer of one’s property or assets upon death. A will is a legal declaration and testamentary instrument and becomes effective only upon death.

Who can make a will? : Any person of sound mind, not being a minor, can write a will. The person who makes a will is called as testator.

Purpose of a will: Generally wills are made for disposal of property after the death of testator. It can also be used for appointing a legal guardian or executor for creating a trust.

Types of Will

Privileged will: Under Indian Succession Act, a soldier who is employed in an expedition or a war-like situation or airman or mariner being at sea can prepare privilege will.

Unprivileged will: Unprivileged Wills are all other kinds of Wills and in the execution of these Wills; a lot of formalities need to be carried out from verification of signatures till attestation of witnesses.

The procedure to make a Will

Any will is made generally by two modes:

  1. through the testator himself

  2. through a lawyer under the instructions of a testator.

There is no particular format involved in the writing of a Will though the legal community follows some templates. Whatever may be the model or format; there are mandatory steps to be followed while writing the document named Will.

Details of the testator- The name, age, address and other details which shall help in identifying who is making the will and when is it being drawn.

Declaration – It is very important that the testator declares that he/she is of sound mind and free of any coercion while drawing the will.

Details of the beneficiary – The details of who shall be benefitting out of this will and to whom the assets shall be divided should be given as their name, age, address and relation to the testator.

The executor of the will – It is very important to appoint an executor who would ensure that the will is carried out according to the directions provided by the testator. The name, age, address and relation to the testator should be specified as well.

Details of property and assets – It is pertinent to list out all the details of the assets and properties that a testator has, and which are the ones that shall be covered in the will. He/she can also list out any specific assets that are there.

Division of share – The share that each beneficiary has on the property or the specifics of who shall get what is to be listed in full detail. If the asset is to be given to a minor, then a custodian for the minor should also be listed in the will.

Specific Directions – The testator should give directions in terms of executing the Will and should specify if there are any instructions

Witness – There should be a signature by the testator in the presence of at least 2 witnesses. The witnesses do not need to know the details of the will they just have to verify that the signature by the testator was done before them.

Signature – The testator should sign with the date on the will after the last statement.

Procedure to get a Will executed

Any will is executed after the document is signed by the testator in presence of the witnesses; the will is to be registered through registrar after paying required stamp duty to register the document.

A registered will is always more in approval than an unregistered Will though the latter is perfectly valid; the former is more effective in a contest before a Court of law.

The execution of a Will is to be done by the executor appointed for the purpose by the testator. It is nothing but the distribution of property of the deceased according his/her intent as worded in the Will. In order to start his duties as an executor of a Will, a probate is necessary. For this to be realized, the executor should apply for probate of the Will before a competent Court.

Probate

The concept of probate appears in the process of execution of Will. Probate is a legal process for getting the will validated from the competent court. In this process, the will is submitted to the competent court of appropriate jurisdiction for confirming its validity. Court after completion of its process returns the same will, if found in order, duly signed and stamped by the competent judge. This will be called probated will. Terms mentioned in the probated will is binding on all.

Conclusion

Where there’s a will, there’s usually someone ready to contest it. Where there’s none, someone is ready to fight over the inheritance anyway. This may be true considering that in 2015-16, nearly 66% of the civil cases being fought in 170 district courts across the country were over land and property matters, with as many as 52.7% cases being fought only among families. So, we recommend to take estate planning seriously.

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