What is a will, A will is a legal document that sets forth your wishes regarding the distribution of your property and the care of any minor children. If you die without a will, those wishes may not be followed. Further, your heirs may be forced to spend additional time, money, and emotional energy to settle your affairs after you’re gone.
Most people know that they should have a will, but many don’t know what a will is and how it works.
A will, sometimes called a “last will and testament,” is a document that states your final wishes. It is read by a county court after your death, and the court makes sure that your final wishes are carried out.
Most people use a will to leave instructions about what should happen to their property after they die. However, you can also use a will to
a) Name an executor.
b) Name guardians for children and their property.
c) Decide how debts and taxes will be paid.
d) Provide for pets.
e) Serve as a backup to a living trust.
You shouldn’t try to use a will to:
a) Put conditions on your gifts. (I give my house to Susan if she finishes college.)
b) Leave instructions for final arrangements.
c) Leave property for your pet.
d) Make arrangements for money or property that will be left another way. (Property in a trust or property for which you’ve named a pay-on-death beneficiary.)
If you want to do any of these things, get help from a lawyer.
While a will need not be in a prescribed form, it’s good practice to follow a certain pattern so that everything necessary by law is included, making your will simpler, more solid and difficult to contest. Your will should have these basic things:
Declaration: You should start your will by declaring that you are of sound mind and stating who you would like to be executor of your will. If this isn’t your first will, you should make a statement revoking all previous wills and codicils.
List of your Assets: Next you should list out all your assets. This should include any property you own, the money you have in your savings accounts, fixed deposits and mutual funds. Compiling this list can be time consuming and tedious. It’s best to go over it a few times to make sure you haven’t left anything out.
Divide your Assets: List out clearly who is to receive which assets. Going item-wise may remove any ambiguity. If you wish to give your assets to a minor, don’t forget to appoint a custodian of the assets. It’s important to select someone you trust as a custodian.
Sign the will and involve witnesses: You have to sign your will in the presence of two witnesses. Your witnesses will then have to sign to certify that the will was signed in their presence. It is here that the will should be dated, and you should specify the full names and addresses of your witnesses. Remember: your witnesses don’t need to read your will. They just need to attest to the fact that you’ve signed it in their presence.
Initial each page: After this, the date and place must also be written at the bottom of the will. Every page of the will needs to be signed by you and your witnesses. Any correction made on the will must also be countersigned by you and the witnesses.
Storing the will: Make sure you store your will in a safe place. Copies, if made, should be stored separately from the original will.
Also Read: What is Estate Planning?
You can write a will yourself, or you can hire a lawyer to write one for you. If you write one yourself, you’ll want to find a good will template to help you.
There are no magic words that must be used to create a will. The best advice for writing your own will is to find a good will writing tool to help you. It should help you use clear, unambiguous language to accurately describe your wishes. It should also explain your options and help you decide what to include in your will. For example,
a) Do you want to name several levels of executors?
b) Do you want to name more than one executor to work together?
c) Do you want to name guardians for your children or their property?
d) Do you want to create a trust for your children, so that they receive your property when their older than 18?
And a good will making template will help you know when you should see a lawyer for help writing your will. For example, you should talk to a lawyer if you:
a) Want to disinherit your spouse or child.
b) Are worried that someone might challenge your will.
c) Want to provide money and care for pets after your death.
d) Want to control what happens to your property long after your death.
e) Are worried about estate taxes.
Avoid using complicated or technical legal terms: Many people like using legal terms while drafting such documents. This can get very confusing and often the layman is left puzzled by what is written. So, to avoid any confusion, make sure the language you use to draft the will is simple and precise.
Try to avoid allotting tenancy rights: People, especially those who have been tenants for many generations, often pass on their tenancy, though it isn’t legal to do so. This is a common mistake and there are many court cases regarding this issue. You cannot state in your will that a relative should become the tenant of the property, since you do not have any right to the property.
Update your will: Update your will if your estate changes because of assets bought or sold.
The burden of proving a will to be valid is upon the party putting forward the will. The will must satisfy the conscience of the court that it is the last will of a free and capable testator. Now, who is a free and capable testator? What disqualifies a person from making a valid will? Let’s find out:
Every person of sound mind, not being a minor, may, of his/her own volition, dispose his/her property through a will. So this means that, a will is valid if:
Sound Mind: The person creating the will should be of completely sound mind at the time of writing it. Therefore, a lunatic or idiot can never create a will. However, a person, let’s say with Alzheimer’s, may create a will in case he/she is lucid at the time of writing it. On the other hand, a completely sane person cannot have created a valid will if he/she was inebriated at the time of its creation.
Only Majors: A minor (a person below the age of 18) cannot make a will in India. A testementary guardian is appointed to dispose the property of a minor.
Of Own volition: If a will is attained through coercion, it is invalid. This means that, should a son or daughter force (by being mentally or physically coercive), their parents into writing a will in their favour, it is invalid.
Only Own Property: A will can be made by any person, and it is often made in the absence of a lawyer. For this reason, many people end up distributing even assets that don’t completely belong to them. A wife may dispose a house that is in the name of her husband, for example. This creates problems.
A will is generally challenged by a person’s heirs if they are not satisfied with the shares allotted to them. The common grounds for challenge are that the testator was not of a sound mind at the time of writing the will. Hence, it is pertinent to make the will specific regarding the apportionment of property.
While making a will, a person must revoke his earlier will and declare himself to be of sound mind. In case he is willing to deprive any of his heirs from the property, it is better that he gives reasons for this. A will can be revoked or modified by the testator during his lifetime as many times as he wishes to. However, it is necessary to get the alteration or modification registered if the first will was registered. Codicil is an instrument made in relation to a will, explaining, altering or adding to its dispositions and is deemed to be a part of the will.
If there is no will, the property will be distributed according to the personal law of the deceased. The Indian Succession Act is diverse and states different laws of inheritance for different communities. For example, if a Hindu male passes away without leaving a will, the wife and children (including the daughters) share the inheritance. In this category there are further divisions. The testators personal law will govern what happens. If a Muslim male dies without leaving a will, at least two-thirds of his property must be divided among family members. A Muslim wife cannot be dispossessed – the widow gets a definite share. However, the children do not get an equal share. According to Muslim law the sons get twice the share of the daughters. It is best to contact a lawyer if left without a will.