Friday, April 8, 2011

Guidelines for Making a Legally Valid Will in India

(Comments from Legal experts are invited on the correctness of the details provided in this article)

There was a time when people used to not speak of life insurance openly, the subject Will is still a secret & confidential matter people dont speak , share & suggest about it. Taking a guidance from lawyer may be important but equally important is to share with the nearest for the way you want to distribute your wealth & belongings with in your family or the desired people , as you may get few good suggestions.

Purpose of Will :

Making the will during your life time is one of the most important aspects of everybody's life. The hard work done by you for the entire life can get washed away in a moment if you happen to die without making a will as to who will be your successor. There are many examples when the property of the persons is taken over by the government due to non availability of a clear, legally valid will.

Hence, making a will well in time in your life is as important as living a healthy life. The laws and procedures for making the will are different in all the countries. I am going to briefly cover on the procedure of making the legally valid will in India.

Age : The will can be made at any age after 21 years in India.

Paper for Will :

The procedure of making the will that is legally valid is very simple in India as compared with many other countries of the world. You can make the will on plain paper in India. It is not necessary to make the will on judicial or non judicial stamp paper in India. You can get the will typed on a plain paper.

However, it is advisable to write your will in your own hand writing as the same can be verified later in case of any doubts raised by the relatives.

Title of Will / Document Title :

The will should have a headline that should identify that it is a will. A very good example of a headline title can be: Last Will And Testament.

Declaration :

The declaration is to make sure that it is your own will and that only you have made it. So, you should state your full name and address and declare that you are of an age to legally make a will and that you are of sound mind. You will also declare that you are not making this will under anyones influence or that you are in duress. Also you must state explicitly that this is your last will and that you revoke all previously made wills (if any). Make sure that you give the complete personal details.

Name an Executor :

An executor is the person bestowed by you who ensures that the tenets of the will are carried through. So name an executor who has the full knowledge of your business, should know about your spouse or the main beneficiary. While nominating an outside person, like a friend, always ask for the permission first. It is also better to name an alternate executor so that in case of unwillingness of the first, the second can be approached. However, in case you do not name any executor, then the court will appoint one.

Name a Guardian for your Minor Children :

If your children are minor then name a guardian for them. However, if there is a remaining parent then it is not required. Here also, if you fail to nominate a guardian then the court has the power to name a guardian for the children. Do not name anyone without proper discussion with the proposed guardian and state the complete information of the chosen guardian.

Details of Beneficiaries :

Provide complete details of the beneficiaries of your will, so as to avoid any confusion regarding their identity. Name alternate beneficiaries in case of the deaths of the first choice. While appointing beneficiaries it is always better to consult your lawyer, to smooth out the nitty gritty in case you plan to disinherit any members of your immediate family.

Details of your Assets :

Providing the details of your assets is of utmost importance to distinguish between those that have been assigned and those that have not been assigned to the beneficiaries. For assets in different countries, a separate will for that country must be made which should not include the assets from the home country. This is because every country has separate laws and taxes, which must be worked out separately.

It is essential to list out all your assets in the will, item by item, which you own. The approximate current values of the house, land, or any other property should be clearly mentioned in the will. After listing out of all the assets like bank Fixed Deposits, Postal investments, Mutual Funds, Share Certificates, Insurance, Jewelry/ Ornaments, hard Gold & Silver, Money in Saving Accounts etc. (both movable and immovable) owned by you, also indicate where all such documents are stored by you.

Cover Specific Bequests / Distribution of Property :

If you want to bequest a part of your asset or specific property to any person or organizations, then you must will it under the heading ‘Bequest’ where you will clearly state that the name and address of the entity you are making the bequest to. At the end of the will, you must specify as to who shall own all your assets item wise after your death.

You should clarify if the executors are to pay the income generated from such property to any other family member. You may put a clause to specify division of property between the sons & daughters, and implications on the will if they are married. It should also specify circumstances when they remain unmarried & also should specify if the daughter of the testator dies unmarried.

You can also distribute your assets to more than one individual. If you want, you can also form a trust of 2 or 3 persons who shall be empowered to execute your will as per your wish after your death.

Trustees :

The trustees can be anybody of more than 21 years of age. If you are giving your assets to the minor, make sure to appoint custodian of your assets till the individual you have selected reaches an adult age.

Custodian :

This custodian must be a trustworthy person. Once you complete writing your will, you must sign the will very carefully in presence of at least two independent witnesses. These witnesses have to sign after your signature certifying that you have signed the will in their presence. The date and place also must be indicated clearly at the bottom of the will. All the pages of the will need to be signed by you and all the witnesses. If any correction is made on the will, such corrections also must be countersigned by the person making the will and the witnesses.

Storage of Will & Important document :

Mostly, such critical documents are to be preserved in the bank safe deposit vault. The detailed records can also be kept on your personal computer. However, looking to the security problems faced recently in the computer systems, I would advise to keep a hand written record in a special diary that may be stored safely away from other routine documents.

Funeral Arrangements :

In your will you can state the mode of your funeral. You can state if you want to be buried, or cremated or disposed of in any suitable way. But all these should take into considerations the laws of the country. You may put a clause for payment of any liabilities incurred in the past or during ceremonies to be conducted upon death.

Signatures of Witnesses :

There should be a minimum of two witnesses whose signatures must be taken on the will. This is very necessary in case of any disputes arising later, which can be cleared by the witnesses. Also you cannot select witnesses who are beneficiaries of your will. It is not mandatory for the witnesses to read the entire will. It is better to select the witnesses who are not related to you. They can be your friends, neighbors, or your colleagues at the job. They only certify as to you yourself have signed the will in their presence and are not the party in making the will. It is advisable to write your will on good quality thick white paper that does not get spoiled over a period of time. The will also may not be folded and must be stored in a plastic envelope in full size. The envelope has to be sealed after completing all the formalities and the seal must bear your signature and the date of sealing. The witnesses need not sign on the seal of the envelope.

Your Signature :

The signature gives credibility to the will. And it must be signed in the presence of witnesses as they will attest to the fact that it is indeed your will. Specify the place and date and sign on every page.

Execution of Will :

It is not legally required to get the will executed in a court of law in presence of a judicial Magistrate inIndia. However, if you wish, the will can be executed in presence of Magistrate or the public notary, nominated by the government authorities and sealed in their presence. You also should not take out many Xerox copies of your will. At the most, only one copy must be taken and stored separately from the original will. The will must be stored very safely in your bank in safe deposit box. You must also inform your next of kin as to where you have stored your will. Do clarify what if the executors die before the death of the testator.

Update / Change Will :

You can change your will any time you wish. However, make sure to mention that this will is the latest and supersedes all earlier wills.

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