This blog outlines the procedure of registering a will in India along with the pros and cons of a will. Read on to know about it.
Overview
When a person makes a will registration they declare how the assets and properties are disbursed and to whom after death. Of course, the property and support can’t be ancestral but only self-owned. Enrollment of will is not mandatory, as, under the Indian Succession Act of 1925, it’s considered a personal choice of the testator. It is, nonetheless, advisable to register your will if its contents are to be followed after your death. In other words, if your will is not registered, its legality or genuineness will be questioned, sometimes making it impossible to verify. This blog explains the procedure and Pros and cons of a will.
Procedure
Having understood the need for a will, let’s look at the procedure,
- Get a good lawyer to put your wishes into legal language and draft your will. Know that Vakilsearch’s will and testament lawyers are your best bet when it comes to it.
- Once the will is drafted, at least two witnesses should accompany the testator to the Registrar for registration.
- Enrollment of a will happens at the office of the sub-registrar. One must submit address proof and photographs and get witnesses to sign the will. The witnesses have to bring their photographs and address proofs as well.
- Once registered, it can be kept in safe custody with the lawyer or in a bank locker. In addition, the registrars also have the authority to keep wills in the deposit. If you select a registrar to safeguard your will, you must put the will in a sealed cover. After confirming the identity of the testator or the authorized person, the register will keep on the will.
- If you want to withdraw the will from the Registrar, you can personally send your request or do it through an authorized agent. If the Registrar is satisfied, they will deliver the will to you.
- If you want to revise or modify certain clauses in your will, it can be done through a Codicil, a document enlisting the amended parts of the will. It must then be attested by the testator in the presence of two witnesses and kept along with the original will at the Registrar.
- If the person whose will is with the Registrar dies, any person may apply to the Registrar to open the cover containing that will. However, the Registrar will only open the cover after confirming that the testator is dead. They open the cover in the applicant’s presence and provide a copy of the will. The original will remain in the Registrar’s custody until a court orders them to produce the original will.
Pros of a Will
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Wills Get You Out Of Intestacy
Intestacy, the situation where an individual passes away without a will or other estate plan, can lead to a series of complications in the distribution of their assets.
In the absence of a will, a judge steps in to appoint an executor, often a surviving spouse or child, to oversee the distribution of the deceased person’s property according to the applicable laws. Typically, the entire estate might go to the surviving spouse or be evenly divided among all surviving heirs.
The intestate process can be protracted, and the court’s decisions may not align with the deceased person’s preferences for asset distribution. While having a will doesn’t entirely eliminate the need for court proceedings, it does allow you to articulate your wishes, ensuring your voice is considered in determining the fate of your estate.
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Wills Can Include Funeral Preferences
Many individuals opt to coordinate their estate planning with their final wishes. The versatility of a will allows you to consolidate both sets of preferences in a single document. Your will can encompass various details related to your funeral preferences, including:
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- Burial or Cremation: Specify whether you prefer a traditional burial or cremation.
- Cemetery or Columbarium Space: Indicate any owned space at a cemetery or columbarium.
- Pre-Purchased Funeral Plans: Include details about any pre-purchased plans from a funeral director.
- Memorial or Funeral Service Preferences: Outline your preferences for the type of service, if desired.
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Wills Can Provide For Your Children
Contemplating the prospect of leaving our children behind is undoubtedly a sensitive matter. Nevertheless, opting for a will in your estate planning allows you to formulate a comprehensive strategy to provide for your children in a manner that trusts may not achieve.
For those with children, your estate lawyer may recommend incorporating a guardianship clause into your will. This clause enables you to designate a trusted individual to take care of your children in the event of your passing. Additionally, you can establish a ‘testamentary trust’ within your will to earmark assets specifically for their well-being. This approach ensures a clear and legally binding framework for the financial support and care of your children.
Moreover, if you have beloved pets, you can extend this provision by including a guardianship clause and testamentary trust to outline their care and financial needs in your will. This comprehensive approach to estate planning helps safeguard the future well-being of both your children and cherished animal companions.
Cons of a Will
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Wills Aren’t Private
When an individual passes away with a will, the legal process of probate comes into play. A judge initiates probate proceedings to assess if the will adheres to legal requirements. If approved, the executor must then identify heirs, settle debts, handle challenges, and distribute the remaining assets as per the decedent’s wishes.
However, it’s essential to note that once probate concludes, the will becomes a part of the public record. Interested parties can access it by providing the decedent’s name and paying a fee to the court clerk. If privacy is a concern, opting for a trust instead of a will may be a preferable choice, as it allows for a more discreet handling of affairs.
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Wills Don’t Have Tax Benefits
While a well-drafted will can simplify tax proceedings, it lacks the specific tax benefits associated with certain types of trusts. Consider an irrevocable trust, for instance. If you transfer assets, like a vintage car, into this trust, it becomes separate from your estate, exempting it from taxable income. However, it’s crucial to note that accessing the assets placed in an irrevocable trust may have limitations.
Other trusts, such as charitable lead or remainder trusts, offer potential tax advantages. These trusts might qualify for partial tax deductions, including incentives related to estate and gift taxes. Therefore, when contemplating your estate planning strategy, understanding the distinct tax implications of wills versus trusts becomes essential.
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Wills Can Be Challenged
Given that probate proceedings are open to the public, individuals have the legal right to contest the validity of a will if they have valid reasons. Various grounds for challenging a will may include:
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- Coercion: Allegations that someone forced or unduly influenced the testator to create or modify the will.
- Mental Capacity: Claims that the testator was not of sound mind or lacked the understanding of the contents of the will while signing it.
- Missing Elements: Assertions that the will lacks essential components, such as a required signature or witness.
Why is a Will Recommended?
True, not registering a will does not imply that the will is invalid. An unregistered will does not prevent any legal heir from fighting for the same. So, why is it advised to register a will?
The government does not consider a will to be the only final legal document for distributing a deceased person’s estate or other assets. Following the death of the will owner, the executor named in the will initiates testamentary proceedings in civil court. They must apply for the same within two years of the will owner’s death. The executor must also provide proof of the will testator’s death. They should also confirm that this is the deceased’s testament.
The court issues a notice to the testator’s legal heirs to file objections to the granting of probate or citation publication in the local newspaper. The court also confirms if the will submitted is the actual final will of the deceased person. It also confirms whether the testator duly executed and attested the will according to the law. Also, it collects proof of whether the testator was of sound mind when they created the will. If everything seems to be in order, the court issues a letter of probate or a letter of administration, mentioning the necessary points are satisfied.
However, one can always challenge a will by claiming the testator was mentally unsound while making the will. Also can claim that the will was altered after being signed.
During such times, a registered will helps the court by providing valid legal evidence against these allegations. This is because no one can destroy, steal, mutilate or tamper with the registered will. Hence, the court will have no reason to doubt the will’s authenticity. This helps the asset distribution process conclude peacefully without chaos or confusion.
FAQs
Is it better to write a will in India?
Drafting a Will in India stands as a vital component of financial planning and estate administration. Beyond being a legal document, it represents an investment in the security of your family and contributes to your personal peace of mind.
Is handwritten will valid in India?
In India, wills are legal documents and do not necessitate a rigid adherence to a specific format. It is permissible to draft a will on plain paper without the need for registration. Even a handwritten document can be considered a valid will.
How Can a will be challenged in court?
According to Section 61 of the Indian Succession Act, 1925, a will induced by fraud, coercion, or any undue influence that compromises the testator's free agency is explicitly deemed void. Any will created without the genuine free will of the testator is susceptible to challenge.
Is signature mandatory in Will?
A will is deemed valid only if it is in writing and executed as follows: the testator must sign it at the bottom or end, and this signature must be made or acknowledged in the presence of two or more witnesses concurrently. These witnesses are required to attest and subscribe to the will in the presence of the testator, without a specific form of attestation being obligatory.
Who can witness a Will in India?
Witnesses must fulfil specific criteria to ensure their appropriateness for the role. Considering the likelihood of their role in validating a Will in the future, it is recommended that witnesses be preferably 5-10 years younger than the testator. Generally, witnesses are required to be at least 18 years old to meet the minimum age requirement.
How do you prove a will is valid or not?
To verify the legitimacy of a will, standard legal procedures usually include scrutinising the document's execution, verifying the mental capacity of the testator, and confirming the absence of coercion or undue influence. This may involve interviewing witnesses and considering supporting evidence like medical records. Legal experts are instrumental in facilitating this process.
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