Preparing a will is a critical step in assuring the seamless transfer of your possessions and the protection of your loved ones following your death. When creating your will in the Indian setting, there are special legal obligations and concerns to keep in mind. Here are some pointers to get you started.
Legal framework
Familiarize yourself with the relevant laws and regulations governing wills in India. The Indian Succession Act, 1925, governs the rules and procedures related to wills in the country.
Determine your assets and investments
Make a comprehensive list of all your assets, including property, bank accounts, investments, and personal belongings. This will help you determine how you want to distribute your assets among your beneficiaries.
Select an executor
An executor is responsible for carrying out the provisions of your will. Select a trustworthy and competent person to serve as the executor of your will. It is advisable to inform them about their role and obtain their consent beforehand.
Decide on beneficiaries
Determine who will be the beneficiaries of your assets. You may choose to leave your assets to family members, friends, or charitable organizations. Clearly mention the names and details of your beneficiaries in your will.
Seek professional advice
Although not mandatory, it is advisable to consult with a lawyer or a professional estate planner to ensure that your will is legally valid and covers all necessary aspects. They can provide guidance specific to your situation and help avoid potential complications in the future.
Draft the ‘Will’
While it is possible to prepare a will on your own, it is important to follow the legal requirements. The will should be in writing, signed by you, and attested by at least two witnesses who must also sign the document. The witnesses should not be beneficiaries or closely related to you.
Include important details
Clearly state your full name, address, and date of birth in the will. Specify that the document is your last will and testament, and revoke any previous wills you may have made. Provide specific instructions regarding the distribution of your assets and any other wishes you may have.
Safely store the will
Once your will is prepared and executed, store it in a safe place like a bank locker or with a trusted individual. Inform your executor or a close family member about the location of the will so that it can be easily accessed when needed.
Review and update periodically
Life circumstances and asset holdings can change over time, so it is essential to review and update your will periodically. This ensures that it reflects your current wishes accurately.
Remember, this information is provided as general guidance, and it is always recommended to consult with a legal professional to ensure compliance with the specific laws and requirements.
Things to avoid while writing a ‘WILL’
Following are a few points that you should avoid drafting a will.
Lack of testamentary capacity
Ensure that you have the mental capacity to understand the nature and consequences of making a will. If there are doubts about your mental capacity, it may be challenged later.
Inadequate formalities
Follow the formalities required under the Indian Succession Act, 1925, such as signing the will in the presence of two witnesses who should also sign it. Failure to adhere to these formalities can render the will invalid.
Ambiguous language
Use clear and unambiguous language in your will to avoid any misinterpretation or confusion regarding your intentions. Clearly identify the beneficiaries and specify the distribution of assets.
Excluding close family members
Be cautious when excluding close family members from your will, particularly if they have legal rights to your property. In India, certain family members, such as spouse, children, and parents, have legal entitlements to a portion of your estate, and excluding them without providing adequate justification can lead to legal challenges.
Coercion or undue influence
Ensure that your will is free from any coercion or undue influence from others. Any signs of coercion or pressure may lead to challenges against the validity of the will.
Invalidating existing wills
If you have an existing will, make sure to revoke it explicitly in your new will. Failing to do so can create confusion and potentially result in contradictory instructions.
Ignoring tax implications
Consider the tax implications of your will, including inheritance tax or other applicable taxes. Consult with a legal or financial advisor to understand the tax consequences and explore strategies to minimize tax liabilities.
DIY Will without legal advice
While it is possible to create a will without professional help, it is generally advisable to consult a lawyer who specializes in estate planning to ensure that your Will complies with the relevant laws and addresses your specific circumstances.
I hope you find this blog a useful one.
Death is an uncertain, unforeseen, unfortunate event that everyone has to face. So, it is necessary to be prepared and decide in advance to whom you want to transfer your hard-earned assets after you die. This will avoid complications. Someone has rightly said, “Hope for the Best and prepare for the Worst”.
We had done a Facebook Live, in Marathi, on the similar topic under our initiative Friday FinTalk. Below are the links to the sessions.