I am sure you would like to see your near and dear ones CONVENIENTLY inherit your property, money and other assets with minimum fuss, expenses and paperwork.
I am sure you would also like to see this happen AMICABLY. You wouldn't want them to get into any disputes or disagreements and finally end up in court.
If that be so, you must write a Will. The process is quite simple and straightforward.
Just keep the following salient aspects in mind and you would have written a good and useful Will.
Plain paper / Stamp paper
A Will written on your own on a simple piece of paper is good enough and will serve the purpose. You don't even need a stamp paper for it or notarize it. (However, if you anticipate any trouble later among your heirs, it may be advisable to consult a lawyer. This is to avoid any errors and omissions.)
Typed or Handwritten
It is easier to prove the authenticity of a handwritten Will. So a handwritten one would be better than a typed Will.
Basic structure
Briefly, a Will should contain your particulars, the details of the legal heirs and the assets that you wish to pass on to whom.
Drafting of the Will should be such that the language is absolutely clear.
Further, it has to be sufficiently detailed and specific. Ideally, all the assets should be individually mentioned with all the relevant particulars so as to avoid any ambiguity or confusion. Likewise, even the beneficiaries should be clearly identifiable with names, addresses and relationship while avoiding any nicknames.
Finally, it should be duly and properly signed by you and two witnesses (along with their details).
Declaration
To the Will you should add a declaration that you are of sound mind while writing the Will, that no force has been applied for you to write the particular Will and that it revokes all the earlier Wills. In certain cases, attaching a doctor's certificate for sanity and mental health may be helpful.
Registered or not
Registration of the Will is not mandatory. However, a registered Will is difficult to contest. It minimizes the grounds on which normally people challenge a Will such as forged signature, person not being of sound mind or use of force. The Will can be registered at the office of the sub-registrar or registrar of the district court where your property is located. (Of course, even registered a Will can be challenged in the court.)
Update
Since both the beneficiaries and the assets may change from time to time (depending on births, deaths, marriages, divorces, new purchases, sale of earlier assets etc.) your Will should reflect the latest position. Hence, updating the Will must not be overlooked or forgotten. You can update your Will any number of times as you want.
Updating the Will can either be done by (a) revoking the earlier Will and re-writing a new one or (b) by adding a supplement to the existing Will, known as codicil in legal parlance. Here Will + Codicil is considered as the complete document. Whether registered or unregistered, the last drawn Will is considered as valid as per law.
Executor / Administrator
In order that your wishes as per the Will are duly and correctly carried out, you have to appoint a suitable and trustworthy person who will execute your Will. In fact, some people nowadays appoint third-party persons as executors, instead of relatives, to ensure objectivity and avoid any conflict of interest. In the absence of an executor, the court will appoint an administrator when required.
Guardian for minors
If your children or other beneficiaries are still a minor at the time of writing the Will, you must name a guardian too e.g. grandparents or other close relatives. Guardians take care of the assets till the minors turn into an adult. If the absence of a guardian, the court will have to come into the picture whenever the minor has to do any transaction, to ensure that his/her interests are well protected.
Gift vs Will
Some people prefer passing on the assets as a gift while they are still alive. This is a simpler strategy with less chances of disputes and your children get to enjoy the assets sooner. Beware. We often hear stories of elders being neglected, or worse ill-treated, after they have gifted away all their assets.
Gifting has another problem. Once given you cannot ask for the gift back. Gift Deed is an irrevocable document. Whereas, if need be, you can always change your Will. Will is a revocable document and so you can add / delete the beneficiaries.
Taxation
Will is normally free from any taxation issues. On the other hand, depending on the nature of transaction, there may be tax liability involved when gifting any property or asset.
Will vs Nomination
As per law, a Will is superior to nomination. Hence, in most cases the nominee is only a trustee. S/he does not automatically become the owner of the asset after your death. S/he has to transfer the assets to your legal heir(s).
Ancestral property
In case of an ancestral property (defined as a property that has been passed on for three generations), you can only include your share in that property in your Will. Moreover, this can be done only after you have acquired your share in it.
No Will
In the absence of a Will (known as dying intestate in legal language), your assets would be passed on to your legal heirs as per the relevant laws. This will depend on your religion i.e. Hindu Succession Act (for Hindus, Sikhs, Jains and Buddhists) or Islamic Law (for Muslims). In other words, your legal heirs will get the money in the proportion as laid down in law, and not as per your personal wishes (which may be different from law).
Of course, a Will does not completely eliminate disputes. But, it will definitely minimize the chances of litigation. Objections if any could probably be settled quickly and without any complications.
I am sure you would also like to see this happen AMICABLY. You wouldn't want them to get into any disputes or disagreements and finally end up in court.
If that be so, you must write a Will. The process is quite simple and straightforward.
Just keep the following salient aspects in mind and you would have written a good and useful Will.
Plain paper / Stamp paper
A Will written on your own on a simple piece of paper is good enough and will serve the purpose. You don't even need a stamp paper for it or notarize it. (However, if you anticipate any trouble later among your heirs, it may be advisable to consult a lawyer. This is to avoid any errors and omissions.)
Typed or Handwritten
It is easier to prove the authenticity of a handwritten Will. So a handwritten one would be better than a typed Will.
Basic structure
Briefly, a Will should contain your particulars, the details of the legal heirs and the assets that you wish to pass on to whom.
Drafting of the Will should be such that the language is absolutely clear.
Further, it has to be sufficiently detailed and specific. Ideally, all the assets should be individually mentioned with all the relevant particulars so as to avoid any ambiguity or confusion. Likewise, even the beneficiaries should be clearly identifiable with names, addresses and relationship while avoiding any nicknames.
Finally, it should be duly and properly signed by you and two witnesses (along with their details).
Declaration
To the Will you should add a declaration that you are of sound mind while writing the Will, that no force has been applied for you to write the particular Will and that it revokes all the earlier Wills. In certain cases, attaching a doctor's certificate for sanity and mental health may be helpful.
Registered or not
Registration of the Will is not mandatory. However, a registered Will is difficult to contest. It minimizes the grounds on which normally people challenge a Will such as forged signature, person not being of sound mind or use of force. The Will can be registered at the office of the sub-registrar or registrar of the district court where your property is located. (Of course, even registered a Will can be challenged in the court.)
Update
Since both the beneficiaries and the assets may change from time to time (depending on births, deaths, marriages, divorces, new purchases, sale of earlier assets etc.) your Will should reflect the latest position. Hence, updating the Will must not be overlooked or forgotten. You can update your Will any number of times as you want.
Updating the Will can either be done by (a) revoking the earlier Will and re-writing a new one or (b) by adding a supplement to the existing Will, known as codicil in legal parlance. Here Will + Codicil is considered as the complete document. Whether registered or unregistered, the last drawn Will is considered as valid as per law.
Executor / Administrator
In order that your wishes as per the Will are duly and correctly carried out, you have to appoint a suitable and trustworthy person who will execute your Will. In fact, some people nowadays appoint third-party persons as executors, instead of relatives, to ensure objectivity and avoid any conflict of interest. In the absence of an executor, the court will appoint an administrator when required.
Guardian for minors
If your children or other beneficiaries are still a minor at the time of writing the Will, you must name a guardian too e.g. grandparents or other close relatives. Guardians take care of the assets till the minors turn into an adult. If the absence of a guardian, the court will have to come into the picture whenever the minor has to do any transaction, to ensure that his/her interests are well protected.
Gift vs Will
Some people prefer passing on the assets as a gift while they are still alive. This is a simpler strategy with less chances of disputes and your children get to enjoy the assets sooner. Beware. We often hear stories of elders being neglected, or worse ill-treated, after they have gifted away all their assets.
Gifting has another problem. Once given you cannot ask for the gift back. Gift Deed is an irrevocable document. Whereas, if need be, you can always change your Will. Will is a revocable document and so you can add / delete the beneficiaries.
Taxation
Will is normally free from any taxation issues. On the other hand, depending on the nature of transaction, there may be tax liability involved when gifting any property or asset.
Will vs Nomination
As per law, a Will is superior to nomination. Hence, in most cases the nominee is only a trustee. S/he does not automatically become the owner of the asset after your death. S/he has to transfer the assets to your legal heir(s).
Ancestral property
In case of an ancestral property (defined as a property that has been passed on for three generations), you can only include your share in that property in your Will. Moreover, this can be done only after you have acquired your share in it.
No Will
In the absence of a Will (known as dying intestate in legal language), your assets would be passed on to your legal heirs as per the relevant laws. This will depend on your religion i.e. Hindu Succession Act (for Hindus, Sikhs, Jains and Buddhists) or Islamic Law (for Muslims). In other words, your legal heirs will get the money in the proportion as laid down in law, and not as per your personal wishes (which may be different from law).
Of course, a Will does not completely eliminate disputes. But, it will definitely minimize the chances of litigation. Objections if any could probably be settled quickly and without any complications.
