All You Need to Know about Making a Will
No one likes to think about death, least of all their own. But the morbid truth is that planning ahead helps secure your family’s future and prevent misunderstandings or disputes about your wishes. All assets you’ve acquired in your lifetime are a possible source of security for your family. What happens to them – and in some cases to your young children – upon your death depends on your making a will. Below, you’ll find the basics of what you need to know about how to make a will.
The basics of making a will
What is a will?
A will is a legal document that allows you to leave your assets, or estate, to people of your choice upon your death. Your estate includes everything you own: properties, money, investments, jewelry, even clothes, books, and dinner plates. A will must contain bequests that are not in conflict with the personal succession laws relevant to you (personal succession laws are decided according to the religion into which you were born or converted). These laws are complicated, and we won’t get into them here. Rather, this is an introduction to what a will is, how and why you should make one.
What does a will do?
Making a will determines exactly who gets what percentage of your estate or to leave specific assets – such as your favourite painting by M.F. Husain or your flat in Bangalore – to specific persons.
Most importantly, you can use your will to appoint someone you trust to be the guardian of your minor children upon your death (if your spouse is also deceased). You and your spouse may have differing opinions on who should be the guardian in the event you both die. It’s extremely important to discuss this beforehand and agree on one person to name as guardian: If you don’t appoint a guardian in your will or don’t create a will at all, then it’s up to the courts to appoint one. This can be a long and tedious process that is almost certainly not in the child’s best interest.
What does it mean to contest a will?
Wills can be challenged in court after your death. But if you are on good terms with your heirs and they respect your wishes in life, there is no reason to worry. Contesting a will is a lengthy process that requires lots of evidence and testimony; courts make decisions on a case-by-case basis. It’s best to take every precaution to make yours a strong will (see below)—no one wants a messy inheritance dispute like the ones have made headline news in recent years. It’s also a good idea to explain your wishes to your heirs beforehand, so no one is surprised and complaints can be addressed while you’re still alive.
What happens if I die without a will?
Dying without a will means neither you nor your loved ones can determine who inherits your estate. It will be divided among your heirs as per the succession laws of your religion. Leaving no will also leaves the door open for a family member or friend to cloud the distribution process or deprive another person from an inheritance.
How to make a will?
First, consult a lawyer. India has various legal codes that deal with succession, which are tied to religion, and these laws are complex. You will need someone to help you make sense of them and advise you in detail on how to write a will.
Next, write a statement in the will that you’re of sound mind and in good health and specifically revoke all former wills, declaring this to be your last will and testament. These statements are enough to revoke any previous wills you may have drawn up previously. However, if you’ve registered any previous wills, then you will need to register every new will as well in order to revoke the previous will. You will also need to retrieve these previous wills from the registrar. (More on registration below.)
Then, when making a will, make a list of all your assets; identify them clearly to avoid any confusion and state who should receive them. These recipients, known as beneficiaries, could be friends, family members, acquaintances, work associates, or anyone, really, as long as you identify them clearly by stating their names and relationship to you. (If you’re dividing your estate percentage-wise it’s a bit easier—simply list the name of the person and the portion of your estate they are to receive. But if you’re leaving specific assets to specific persons, then it’s important to list each asset and beneficiary in the will.)
Who makes sure my will is followed?
Making a will is just the start; you’ll need to appoint someone you know to make sure your assets are disposed of according to your desire. In your will, you can name someone, known as the executor, to carry out your wishes and implement the will. He or she is responsible for ensuring that your estate is transferred to your beneficiaries according to your wishes. Being an executor is a task that comes with a lot of responsibilities, and it’s important that you not only choose someone you trust but also that you ask them beforehand to take on this role. You can have more than one executor if you wish, to ease the burden on your trusted ally. And your executors can also be beneficiaries of your bequests, but this may create more complications for them.
How often should I make a will?
A will is not final in your lifetime. You can make a new one and revoke previous versions whenever and as many times as you want. But you don’t need to make an entirely new will every time you obtain a new asset. Instead, you can make what’s known as a codicil, which becomes part of the will, in order to deal specifically with this newly acquired property and its heir. Note that if your will is registered, you’ll need to register each codicil, too. (More on registration below.)
Generally, a good rule is to update your will with a codicil after you acquire or sell any major property or if you want to add or delete a beneficiary.
What makes a will invalid?
This is perhaps the most important part of making a will, so pay attention: Every will and codicil requires two persons to act as witnesses who can verify your signature and who must sign the will confirming your signature. You should ideally sign the will or codicil in the presence of these witnesses. If this isn’t possible, ask two people who can identify your signature to sign as witnesses after the fact. The executor can act as one of the witnesses to the will, as can beneficiaries. Generally, however, the more those roles overlap, the more room there is for someone to contest and argue these individuals are being unduly favored.
How can I strengthen my will against challenges?
Making a will that has two witnesses attesting to your signature, doesn’t necessarily make it proof against contestation. These steps can strengthen your will:
- Make the statement (discussed above) that you’re of sound mind and in good health and specifically revoke all former wills, declaring this to be your last will and testament.
- Register your will. While a will does not have to be registered by law, registration verifies your and the witnesses’ identities, making it harder to challenge. However, registration will not necessarily prevent challenges on the basis of coercion or undue influence; if you expect your will to be controversial, registration is an additional precaution to consider.
While we didn’t make this up – we consulted a lawyer and some dense legal texts during our research – this article is intended as an informational guide, not as legal advice. Please consult your lawyer before a making a will to ensure that its provisions do not conflict with India’s various succession laws and that you’ve addressed the specifics of your situation.