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What is a Will? Why is it Necessary and How To Make it?

Fights over property and assets between family members and relatives is common in India. These fights result in long battles in court (litigation) which take years to resolve rendering the making of a will necessary.

What is a will?

Will is a document in which you state how you wish to distribute your assets and property to your heirs (beneficiaries) after your death. The will can be enforced only after your death. You need to appoint an executor (person who sees that the assets are distributed as per your wish) as you are not around to do it yourself. You can will only what you legally own to your heirs (children).You can will only the wealth and assets you have earned in your lifetime to your heirs. (If your dad has willed you his property it automatically passes to your children).You cannot merely state “ I will” .You need to mention “what you will “ such as a land or a property.

Why is it necessary to make a will?

If you die intestate (without making a will) you have no control on who inherits your property (it can go to someone you don’t like).If you die without making a will then the state decides how to divide your property as per the laws of the country.

  • Hindu succession act 1956 (If you are a Hindu)
  • Indian succession act 1925 (If you are a Sikh, Buddhist, Christian, or a Jain)
  • Muslim personal laws (If you are a Muslim).

Fights among family members leads to property going to someone outside the family. (Some elderly people give their wealth to someone who is close to them in their last years).

Fights among siblings for the control of business assets (factories and property) of their parents after they pass away.

Who can make a will?

If you are over 18 years of age and of sound mind then you can make a will.

How to make a will?

  • A will can be typed or handwritten on plain paper. It does not have to be written on stamp paper or any legal paper. You need to state that you are the maker of the will (testator) , make a list of your assets and state how you would like your assets to be distributed.
  • The will should be legible and written in simple English. There should not be any technical terms (jargon) used in the will. You need to mention clearly to whom and how much you will. You cannot say all my cash is left to my son. You need to mention the amount (say INR 25 Lakhs).
  • Avoid using words which have more than one meaning as well as nicknames.
  • You need to sign every page of the will and mention the number of pages in the will. The will needs to be signed by at least 2 witnesses.
  • You need to mention that the will is not made by force or under pressure and you are of sound state of mind preferably witnessed and attested by a doctor.
  • You can make changes in the will called (codicil) any number of times as long as you are alive. The will you make last is the true will. The earlier wills are automatically revoked.
  • You need to appoint an executor (a trusted person) who executes the will on your behalf after your death. It could be your lawyer or a doctor as long as he is not the beneficiary of the will.
  • You need to update the will whenever there is a new addition in your family otherwise your newly born grandchild might not get your gold bangles.

What is a probate?

The legality of the will needs tbe proved in a court of law called a probate. After a probate the will cannot be contested by (those whare left out of it) that you were of unsound mind when the will was made.

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