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Estate Planning FAQs

What is a Will?

A will is a written document disposing your property/assets as per your wishes after your demise. A Will can also specify other wishes such as the type of funeral you would like, organ donation, a guardian for your children etc. However, there must be a declaration with respect to property without which it ceases to be a Will.

Why do I need a Will?

A Will allows you to pass on the assets owned by you to the people you want. In the absence of a Will, your assets will be disposed according to the Succession law applicable to you. I.e. The Hindu Succession Act if you are a Hindu, Buddhist, Sikh or Jain. The Indian Succession Act if you are a Christian or Parsi and the Muslim Succession Act if you are a Muslim. These Succession laws specify what proportion of assets will be passed on to stipulated family members. This disposition may not be in accordance with what your wishes may have been. A Will also prevents unnecessary family discord and disputes.

I have nominees on all my investments? What is the need for a Will?

A Nominee will receive the benefits from a bank a/c, insurance policy etc. on the owner’s death. However, the nominee does not become the rightful owner unless he is the legal heir. He receives the proceeds only in capacity as a trustee for the legal heirs. The only exception is in the case of the beneficial nominees in life insurance policies, PPF where the rights of the nominee to the shares override the rights of the heirs to whom the assets have been passed on.

Who can make a Will?

In law, any person above the age of 18 years and of sound mind is allowed to make a Will.

What is the right age to make a Will?

Any person above the age of 18 must make a Will. In today’s world of uncertainty, it is wise to make a Will to ensure your assets will go to the people you choose and prevent any family disputes. Parents of young children can also ensure that the interests of their children are taken care of in the way they would have liked.

What are the important elements of a Will?

A Will must be dated

A Will must be signed

A Will must express a desire that the testators (person creating the Will) wishes must be carried into effect after his death.

There must be a disposition of property. For example, if a Hindu testator gives his wife the authority to adopt without giving anything else in his properties, it is NOT a valid Will.

A Will must be attested by two witnesses. (It is advisable that the witness is younger than the person making the Will.

Which succession law applies to me?

Different laws apply for testate (with a Will) and intestate (without a Will) succession. 

  • For testate succession (i.e. if you have made a Will) then, Hindus, Buddhist, Sikhs, Jains, Christians, Parsis and Jews will be governed by the Indian Succession Act. Muslims will be governed by the Muslim Succession Act.
  • For intestate succession (i.e. you have not made a Will) then

Hindus, Buddhists, Sikhs and Jains will be governed by the Hindu Succession Act.

Christians, Parsis and Jews will be governed by the Indian Succession Act.

Muslims will be governed by the Muslim Succession Act.

Who is an Executor? Is it mandatory to appoint an Executor? Who executes the Will incase no Executor is appointed?

An Executor is the person who will carry out the wishes as set out in the Will. It is his duty to disburse the assets to the beneficiaries as stated in the Will. It is not mandatory to appoint an Executor. However, if no Executor is appointed by you, the court will appoint an Executor for the Will.

Who should I choose as an Executor for my Will?

Any person who is of sound mind and capable of carrying out the wishesas stated in the Will should be appointed as an Executor. It is beneficial to appoint a beneficiary as the executor. One can appoint more than one executor to be co-executors of the will. Increasingly, people prefer to appoint a professional executorship company to act as the executor as it saves the family/loved ones from the from the hassle of administrative tasks involved in the execution of the estate.

Does a Witness need to read the contents of the Will before signing?

No, it is not mandatory for a Witness to read the contents of the Will before signing. By signing the Will, the witness only confirms that you have signed your Will in his/her presence. 

Can a beneficiary (person receiving something in my Will) also be a witness?

No, a beneficiary cannot be a witness. A beneficiary’s spouse can also not be a witness.

Can the beneficiary be an Executer?

Yes, A beneficiary in your Will can act as an Executor. Infact, it is beneficial for the beeneficairy to be the executor as it is in his/her interest to execute the will at the earliest.

Who should I choose as beneficiaries?

A Will gives you the right to bequest the assets you own as per your desire to any person in any proportion. A beneficiary can be your spouse, your children, family members, relatives, friends, charitable Trusts etc.

Who should I choose as guardian for my minor child/ children?

Primarily, the natural guardian should be appointed for minor child/children. If natural guardian is not alive then any trustworthy person from the extended family and/or person who is capable and of sound health to look after the child/children can be appointed.

Can I mention my wishes regarding my digital life such as access to email accounts, social media accounts?

Yes, a Will allows you to mention how you would like your digital life to be dealt with. A will allows you to give a person the authority to access your online accounts subject to the terms and conditions of the online service providers.

Can I deny property to an heir in my Will?

It is not enough to say that an heir should not inherit any part of the estate. That property must be willed to someone else. In the event that there is no other person inheriting that property then it will go to the heir as per the succession law even though you have stated in the Will that it must not go to that heir.

What happens to assets that I may have forgotten to mention in the will and assets that I have acquired after writing the Will?

Assets that you have forgotten to mention in the Will would be passed on to your legal heirs as per the succession law applicable to you.

Can I change my Will? How?

Yes, a Will can be changed any number of times.  You can change or revoke your Will by executing a new Will, revoking the earlier Will, destroying the old Will, making a codicil or by registering the new Will (if the old Will has been registered).

Can I declare my Will ‘Irrevocable’?

A Will is always revocable even though the testator may declare it irrevocable.

Where can I store my Will?

A will must be kept in a safe place to prevent the Will from being tampered with and also prevent any misuse of the information contained therein. It is recommended to keep the Will with a company like WillEffect offering custodian services to ensure that the Will is kept in a fire-proof and water-proof safe and confidentiality is maintained. This will also ensure that a disgruntled beneficiary in your Will does not destroy the Will. In the event that happens, it will be deemed that you have died intestate (i.e. without a Will). Your assets will then be disposed to your legal heirs as per the applicable succession laws. The beneficiaries must be informed about the place the Will has been kept.

How can a Will be cancelled?

A will can be cancelled/revoked by making another will. The latest Will will by default make all previous wills invalid. The Will can also be cancelled by tearing it or revoking the Will by some writing.

What is a probate?

A probate is a copy of a Will certified under the seal of a competent court. It is treated as conclusive evidence of the genuineness of a Will. A probate is granted only to the Executor appointed in the Will after a period of 7 days from the death of the testator.

Where does the executor go for a probate?

The executor has to apply for a probate at the District Court under whose jurisdiction the testator owned a permanent residence. The principal judge issues the probate once the requisite procedure is complied with.

Does a Will need to be Typed? Registered? Stamped?

All the above is not mandatory. It is however beneficial to have the Will registered to avoid the questionability of the Will’s genuineness.

How do I get my Will Registered?

The testator (person making the will), 2 witnesses (need not be the same two persons as the Witnesses on the Will), the original Will and a doctor’s certificate stating the testator is of sound mind will be required for registering the Will. The Will has to be registered with the Registrar/sub-registrar of a Local court. A registration fee will be charged. 

What is a Contingent or Conditional Will?

A Will that is made to take into effect only on a certain contingency. Its validity will depend on that contingent event occurring. For example, Mr. A executed a Will to be operative in a particular year, i.e. if he died in that year. A lived for more years after that year.  The court held that it should be deemed that he died intestate, as A did not express an intention that the Will should be valid even after that year.

What is a Living Will?

A Living Will is a declaration stating the persons wishes regarding the use of life prolonging medical treatments in the event that he/she is not in a condition to communicate his/wishes to the family or medical practitioners. It does not dispose property nor is it operational after death like a Will. 

It must be noted that a living Will is not legally enforceable in India. It only provides guidance to your loved ones and near of kin by stating your wishes regarding the administration of medical treatment for crippling illnesses which lead to fear of an un-meaningful life prolonged through medication and treatment which can be painful, stressful and at times very expensive without desired outcome.

When do I need to revisit my Will?

A new Will is recommended in the following instances:

  • If you are a Parsi or a Christian, your old Will stands automatically revoked upon marriage.
  • If any major event has happened, such as the following:
    • Any significant additions/deletions of your assets, eg. purchase of a new property.
    • A need to change the guardian of minor children.
    • A need to change the Executor/s of the will.
    • A major life event like the birth of a child or divorce.