There are only two certain things in life – Death and Taxes. A lot of planning goes into taxes. Yet in India, apart from a life insurance policy, not enough thought goes into death. The reason for this could be cultural. Indians are superstitious and believe that talking or planning about something means that will happen. Well guess what, Even if u don’t discuss about death, it will happen!
WHY A WILL?
When we talk about making a Will, people generally laugh at it for any number of reasons like I don’t have anything to give away, I have nominations, I’m still young; its too complicated to make a Will and I have to make a choice amongst loved ones etc. Well, none of these are good reasons. In fact making a Will really is simple. It is the least legal of legal documents and if you follow a few simple rules, you can prepare it yourself and it can even be handwritten. A nomination is not enough because a nominee, strictly speaking, is not a legal heir.A nominee is someone who takes care of your property after your death until it is transferred to the legal heir. Contrary to what is the general belief, a Will does NOT have to be registered, does NOT need to be on a Stamp Paper or even the green legal paper and does NOT need to be notarized. And you don’t have to be rich or old to make a Will. EVERY ADULT SHOULD MAKE A WILL.
HOW TO DRAFT WILL
Preparation of Will is very very simple. It does not require being in any particular form or legal language or on stamp paper. On simple durable paper, you can write in your own language as to what you want to do with your money/property (For e.g. house, land, bank fixed deposits, postal investments, mutual funds, share certificates etc.) and in what proportions, you want to give and to whom. You must describe money, property etc in proper details and where it is. You should also make a checklist of all pending commitments. This chart would be a sort of ready reckoner of the testator’s commitment to different family members, for which monetary funds are required.
The checklist must also contain obligations that are to be fulfilled through the will. The commitment may also be with reference to permanent maintenance of some dependant members of the family such as the physically challenged, for which you will like to make a provision in the will. One should also prepare a list of the various liabilities as on the date of the execution of a will. The various liabilities which are yet to be discharged by you together with an action plan and the responsibility of specific family members to discharge these liabilities must be listed. You can also pass on specific assets to a particular person together with liabilities attached to those assets. Sometimes, one asset may be inherited by the legal heirs together with certain liabilities which may be or may not be connected with the assets which are inherited. Name of the beneficiary and their details with how much portion, you desire to give should be clearly stated. After writing your desire in simple language with date, you can sign in presence of any two witnesses. If possible, have the two witnesses be a doctor and a lawyer/ Chartered Accountant.
A doctor signing a Will, won’t raise any question of you, being of unsound mind. The lawyer/ Chartered Accountant will vet the Will and make sure you don’t make mistakes at the time of writing and signing it and that you had clearly understood the content and its implications. This is not absolutely necessary and any two witnesses will do. If there is more than one page, each page should be numbered and signed with date. Signature of two witnesses should be obtained on each page. Responsibility of witnesses is limited to you signature in their presence and not about what you have written. No stamp paper is required nor is any stamp fee to be paid. Even by the receiver, no income tax, gift tax, estate duty etc is to be paid. Will makes the transfer of your property as per your wish very simple for the benefit of beneficiaries. Probate shall be necessary only after your death. Your Will supersedes the provisions of your Succession Law.
CAN I CHANGE MY WILL?
You can change your Will at any time and as many times, as you wish! Only thing necessary is to write afresh, give date and get signed by two witnesses, not necessarily the same two, who had signed earlier. Only last Will shall be operative and as such never forget to put date on each page.
CUSTODY OF WILL AND ITS REGISTRATION
You can keep your Will in your custody, with your wife, son, relative, friend, and anybody you trust with instructions to open only after your death. If you like, you may inform beneficiaries about the preparation of Will. This is not necessary. Will need not be registered at all, if you do not have too much property and no complications are involved in property or beneficiaries. Registration gives authentication but is not compulsory.
You must appoint an “Executor” who will be responsible for dividing your wealth amongst the beneficiaries and he will make sure the whole process is smooth. Will, though on simple paper and not registered becomes a legal document, which can not ordinarily be challenged or disputed. So to summarize the same, preparation of Will is important to ensure transfer of wealth in a manner and at the time as per your decision. It ensures that wealth is transferred to people you choose, that the interests of the weak or of minors are provided for, that your wealth is distributed without family disputes and that your wealth is transferred to trusted people who will respect what you have accomplished.
Ø DO IT NOW.
Ø IF YOU HAVE NOT YET DECIDED AS TO WHO SHOULD BE THE BENEFICIARIES, THEN JUST NAME YOUR SPOUSE AS THE BENEFICIARY AND IN FUTURE YOU CAN ALWAYS CHANGE THE WILL AT A LATER STAGE.
Preparation of Will is an act of wisdom with even little money/ property and results in welfare of his near and dear ones.
A suggested format of Will has been attached herewith for your reference.
Note: The above information should not be construed to be exhaustive or formal legal advice. It is suggested that readers consult a legal expert and seek independent advice regarding their individual issues on the subject.
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