Why make a Will

Speaking of making Will may make a room intense and morose; however, it is one of the most important aspects of one’s financial planning. This aspect is overlooked by even the most financially sound and educated minds.

As per Section 2(h) of Indian Succession Act, 1925 a Will is the legal declaration of the intention of a person concerning his property, which he desires to be carried out on his death.

A person by way of his Will plans what must be done with possessions, he could dispose of it all to one person or a group of people or donate them to charity and he can also decide on the management of his accounts and dependents.

People do not fully understand the reasons why one should make a Will to her/his estate. Let’s dive into a few very compelling reasons why one should make a Will.

To begin with a sensitive reason Minor Children. The loss of a parent is a hard-hitting reality for minor children; imagine them being transported from relative to relative uncared, unloved and a burden because you did not appoint a guardian who you could entrust the well-being of your children after you. Not only can a guardian be appointed under your Will; you could also make financial arrangements for your children under the Will, by creating a private trust for their benefit. Where one has remarried a Will helps your children from the first marriage to remain protected and taken care of under the Will.

Your spouse or children (minor or major) may not be in a Mental State to deal with the legal impediments of your assets and liabilities. Allowing them to grieve for you and appointing a trusted Executor could be a valuable gift of time that you give your loved ones under the Will.

Who gets it? You may want certain close ones to receive the benefit of the assets that you have accumulated in your lifetime, to the exclusion of others, who may be entitled to benefit under personal laws from your intestate death (dying without a Will).

You ensure your loved ones are Secured and your assets don’t become a part of a tiresome legal dispute, which could be a daunting and expensive affair for your loved ones.

By your Will, you will appoint an executor who will manage your assets and liabilities as per the detailed instructions you provide in the Will.

Business can be handled through a Will too; the testator can give instructions in their Will to manage turmoil in their business after their death.

Many of us feel deeply for social causes and would want to indulge in certain Philanthropic donations, to make a difference to the world one last time, this too can be covered under a Will.

A Will can be made by a person who has attained majority, is of sound mind and is willing to write a Will (“Testator”).

A Will made by a Hindu, Buddhist, Sikh or Jain is governed by the provisions of the Indian Succession Act, 1925. Mohammedans are not governed by the Indian Succession Act, 1925 and they can dispose of their property according to Muslim Law.

Personal laws of Hindus, Buddhists, Sikhs, Jains and Mohammedans play a vital role in the construction of their Will. For example, a Muslim testator can only bequeath one-third of his properties by a Will. A Hindu testator cannot give any property that forms a part of joint family property or ancestral property, Wills made in contravention to Personal Laws become void.

A person who holds self-acquired property can make a Will in favour of any person who can hold property; hence, a minor, lunatic, a corporation, and other juristic persons can be a legatee. Sections 112 to 117 of the Indian Succession Act, 1925 does impose restrictions on the disposition of property by Will in some cases.

The Testator can make a Will which shall include a detailed description of the property(ies) she/he intends to bequeath along with detailed instructions for bequeathing these properties(ies) to the legatees/beneficiaries of the Will. The Will should provide the complete details of the legatees/beneficiaries, to avoid any confusion. Ideally, the Testator shall also appoint an executor of the Will, who shall, upon the death of the Testator, take the necessary actions under the Will to fulfil the wishes of the Testator mentioned in the Will. The Will shall be signed by the Testator in the presence of 2 (two) witnesses, who shall also affix their mark on the Will. A Will can be registered with the Sub-Registrar of Assurances under the provisions of Section 18 of Registration Act, 1908. Although, not compulsory to register a Will, it is preferable, as it provides strong legal evidence in favour of the authenticity of the Will. Further, it is also a good practice to have a medical certificate obtained before executing the Will.

Not only a person-resident in India having property in India can make a Will, but also, a Non-Resident Indian (NRI) can do so concerning his property in India. NRI Testators are encouraged to have a separate Indian Will, for their intended legatees/beneficiaries to avail tax benefits under Indian Laws concerning the NRI Testator’s properties in India.

Upon the death of the Testator, the Executor under the Will can obtain a Probate from the Court and dispose of the assets and liabilities of the Testator in accordance with the Will.

The law makes provision for us to protect and take care of our close ones even after death. It is best to use this tool to make their lives easy and they could remember you as a responsible human.