Mukesh Patel.in
practical tax & investment planning online
international tax expert / columnist / author / speaker

How Important is Your Will?

Remember That Executing Your Will Is Very Simple

But Its Absence Can Create A Host Of Difficulties!

         The importance of executing a ‘Will’ has yet not been appreciated to its fullest extent in the Indian society. It is, therefore, not surprising to come across several cases where in pursuance to the death of an individual, there are several family disputes and practical problems in the absence of the Will by the deceased.

 What happens in the absence of a Will?

          The general conception prevailing in the minds of many is that on the death of a male Hindu dying without a Will, his assets are required to be distributed only between his widowed wife and sons. However, as per the provisions of Hindu law, both married and unmarried daughters, as also the mother of the deceased are entitled to receive equal shares in the same proportion as widow and sons.

             Where the deceased individual has not executed a Will outlining the actual distribution of his properties amongst the legal heirs, this can give rise to complications. Moreover, where the legal heirs become entitled to various immovable and movable properties, in the absence of a Will, passing of a legal title to them also becomes difficult, since such legal heirs would have to obtain a succession certificate from the Civil Court, the procedure for which is both time consuming and expensive.

 Important Points for Drafting a Will

 The following points need to be borne in mind by an individual who is drafting his Will:

  • A Will can be executed on simple paper and it is not necessary to have any stamp paper or legal paper for the same.
  •  No legal jargon is required to prepare a Will. In fact it is desirable that the clear intention of the person making the Will (testator) can be understood in clear and simple language.
  •  The most important thing in connection with the execution of a Will is attestation of the Will by two witnesses who are present at the time of signature of the testator and who sign as witnesses to the Will. It would be advisable if a person who is beneficiary under the Will does not sign as a witness.
  •  The testator should preferably sign each page of the Will and if there are any corrections in the same he should initial them in the margin.
  • A Will is not required to be compulsorily registered. However, where it is apprehended that the genuineness of the Will is likely to be challenged, it may be advisable to consider either notarization of the Will before a Notary Public or registration of the same before the Registrar. In such circumstances, it may also be advisable to have the individual’s family Doctor sign the Will certifying that he or she is of sound physical and mental health.
  •  The testator should appoint one or more trusted persons as executors of the Will. There is no legal bar against appointing any beneficiary under a Will as an executor. It is not necessary to have the executors sign the Will.
  •  An individual can change his Will any number of times during his life time. When a new Will is made, the old Will is deemed to have been automatically cancelled. On death of a person, the effective Will is the last Will made by him. 
  • Instead of making another fresh Will, if the testator just wants to make some additions or alterations, this can be done by a supplementary or additional Will known as ‘Codicil.’ Will and the Codicil are considered as joint and complimentary to each other. The same points as mentioned above in respect of a Will need to be kept in mind while preparing the Codicil.
  •  The original documents of the Will and Codicil should be kept at a safe place with necessary information in regard to the same to close family members or friends. It may also be advisable to give copies to the executors for their reference.  

And your final check-point!

              To  facilitate  smooth operation  and  passing  over  of investments, it must be ensured that any bank accounts, fixed deposits, shares, securities, bonds, debentures, etc. held by you  are not held in your single name,  but  held jointly  with any close member of your family.  In respect of such investments like Life Insurance Policies, PPF accounts, etc. which do not have the facility of joint holding, it is important that you make a ‘nomination’ in favour of any close member of your family.

               Even  where  you have executed your Will, but if any property is in your single name, it would become  necessary for your legal heirs  to  obtain  a Probate  from a Civil Court, the procedure for which  is  not only expensive but also time consuming!

               Never forget, if there is your Will, everything will go your way!

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