It is agreed that making a Will is important – but how do you go about it?
Sonavi Kher Desai has some answers
A Will is a testamentary document voluntarily made by an adult of sound mind in his/her lifetime, giving instructions about how his/her property should be distributed and/or managed after death. Here are some frequently asked questions relating to a Will.
Can any person write their own Will or do they need a lawyer?
Anyone can write their own Will. However, you must ensure that you follow certain rules. A Will must clearly identify the person making it (testator), adequately describe the property of the person, and who the property is to be given to, either by way of a complete transfer or partial interest for life or use. A Will may also establish a trust for the property with trustees and beneficiaries named. It must be signed by the testator in the presence of two adult witnesses who witness the same by signing the Will and stating that it is signed by the testator in their presence, stating the date and place. Witnesses need not read the Will. A Will may name the executors who will carry out the instructions of the testator stated in the Will.
While a lawyer may be consulted to draft a Will, a simple, straightforward Will can be drafted by the testator himself/herself.
Does a Will have to be written on stamp paper or any other special paper?
No. A Will can be written on any paper. It is recommended that you use a good quality, durable paper.
Does a Will have to be registered?
Registration of a Will is not compulsory in India. However, the testator can choose to register his/her Will if he/she so wishes. The benefit of registering a Will is that it is proof that the testator had appeared before the registering officer and the Will had been attested by the officer. After registration, the Will is placed in the safe custody of the Registrar. It is thus secure and cannot be tampered with.
Does a Will have to be executed in the presence of a Judicial Magistrate or a Notary?
In India, it is not necessary for the Will to be executed in the presence of a Judicial Magistrate or a Notary.
What is the role of the executor(s) of the Will?
The executors of a Will are responsible for administering the estate of the testator on his/her death. They ensure that the assets are divided among the beneficiaries in accordance with the Will and that all the instructions in the Will are carried out. The executors obtain probate from a Court where such probate is required to prove the Will.
Can the witnesses also be beneficiaries?
The witnesses should not be named as beneficiaries under the Will.
Where should the Will be kept?
A Will may be in multiple originals (two or three is advisable), each kept in a safe place. (It is necessary to inform your executor(s) about where you have kept at least one original.
An important point to note: Never keep your Will in a bank safe deposit box. When the testator dies, the bank will not open the safe deposit box until the executor obtains a probate ie. permission from the court to administer the estate, and probate cannot be granted without the Will. So make sure that your Will is kept where it can be accessed by the executor(s).