What is a will and how to draft a will?

With death being as certain as life is, a will is a crucial document to distribute one’s assets after death. A will can serve as a legal document that decides the flow of assets from the deceased to his/her successors. Thus a will can do away with confusions and disputes involved in succession.

The laws regarding the succession of property through modes such intestate succession as well as testamentary succession i.e. will is provided under the Hindu Succession Act

What is a will?

In simple terms, a will is a legal document drawn up to distribute the assets of a deceased, according to their wishes. Thus by making a will one can distribute their assets upon death in an unequivocal and specified manner. It is extremely easy to make a will and you will not necessarily require a lawyer to draft your will. Once drafted through a will does not have to be registered compulsorily, it is always a better idea to register your will. Once drafted, a will can be changed or revoked at any time with/ without making a fresh will, but this must be done in a proper way and with the signature of the testator.

Advantages of Will Registration

Registration of will can be done to ensure that the will cannot be easily tampered, destroyed, mutilated, lost or stolen. Registration also ensures that a copy of the will is kept in safe custody by the Registrar. No person can access the will without the express permission in writing of the testator until his/her death. Finally, if a registered will is uncontested, it is possible to get a leasehold property mutated in the name of the legal heirs without obtaining a probate of the Will.

Thus to maximize the chances of your wishes being carried out after your death create what's known as a testamentary will i.e. a registered will. This document is prepared by the person whose assets are being dispersed and is signed by them in the presence of witnesses. A registered will is, therefore, the best insurance against successful challenges to your wishes by family or business associates.

Steps to Draft your Will

The first step to undertake before you draft your will is to analyze your assets and liabilities so that it is clear that what is to be devolved and what is not to be devolved. Therefore you can start by making a list of the following:

1. Bank investments and accounts (saving account, current account, fixed deposits receipts, recurring deposit accounts)

2. Financial Investments including the various stocks, debentures, bonds, mutual funds, Post office investments and other saving schemes you hold

3. Property under your ownership

4. Personal assets that you want to be devolved

5. Insurances and retirement benefits if any

Next make a list of liabilities including mortgages, loans and other payable liabilities. Once you are done you can subtract these liabilities from the total of your assets shows to know your net devolving worth

Since the will is an extremely personal document, the second step is to make a list of all the beneficiaries as well as the executor, after due thought and consideration. After the testator passes away, it is the responsibility of the Executor to obtain the probate from the court (for unregistered will) and distributes the estate as per the wishes of the testator as per the will.

Drafting the actual will requires you to use very specific and clear language that can translate your unequivocal wishes. For example, even if your property is jointly owned, be specific and clear as to which beneficiary will become the sole owner after you pass away.

Once drafted you can sign your will in the presence of 2 witnesses and go on to register your will so that once you pass away your wishes can be executed the way you wanted without any legal hassles of intestate succession.

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