- Date : 20/02/2018
- Read: 7 mins
A will is an essential document if you want to leave behind an inheritance. But do you know how to go about the procedure?
When you think of making a will, the image of a lawyer overseeing the entire procedure to ensure it’s done carefully, is usually what pops into your head. However, it does not necessarily have to happen that way. Making a will is quite a simple affair; all it requires is a paper and pen.
Yet, according to Delhi-based lawyer V.K. Verma, author of ‘Making a Will Made Easy’, not many people in India draw up wills; the culture just does not exist. In a previous interview, Verma said he reckoned that as many as three out of four Indians do not make wills. His take: Indians are too “naive” in this respect.
Making a Will
- There is no need to be scared, worried or confused about making a will. However, there are certain things you need to keep in mind before you can create a will.
- There is no fixed format for writing a will under Indian laws.
- A piece of paper and pen are all that’s required, assuming the bequests are or have been legally acquired or inherited.
- The written document becomes a valid living will if it carries the signature of the person making the will – the testator, as well as the signatures of two witnesses attesting it.
- If the testator is unable to write, someone else can do it for him/ her. The testator’s thumb imprint will suffice in lieu of a signature, and here too, it will be deemed a valid document or will if two witnesses attest it.
- Even witnesses can provide their thumb impressions instead of signatures.
Courts recognise handwritten or “holographic” wills. Moreover, the testator does not need to write out a will on stamp paper. A regular A4 sheet bought at a stationery store will do.
As a legal document, a living will falls within that category of instruments that may be optionally registered (Section 18 of the Registration Act, 1908). However, there is also no compulsion to have it registered or notarised.
A testator can also revoke or change his or her will anytime. If this happens, the law gives the second will weightage over the first, even if the first is registered and the amended version is not.
Related: Where There Is a Way, There Can Be a Will
Registration Benefits
While there is no compulsion to get a living will registered, it is advisable to do so.
Additionally, the designated authority for the registration of documents – the Registrar of Sub-Assurances – must be satisfied that the person depositing the will is actually the testator or his agent.
However, a registered will can still be challenged as having been made under undue influence, such as the testator being coerced into wording it in the way it has been.
A major advantage of registering a will is that post-registration, its copy (and sometimes even the original) is kept in the safekeeping of the Registrar. The original can only be withdrawn by the Registrar, the testator, or the testator’s agent, as long as he or she is alive.
On the testator’s death, the original document or its copy remains in the safekeeping of the Registrar, who may permit an applicant to take a copy.
This guarantees that the original living will is not tampered with after the testator’s death. If it is suspected that there has been tampering, one can compare the allegedly tampered document with the one at the Registrar’s office.
Additionally, if the original will gets destroyed in a fire or some other mishap or is even stolen, a copy can be obtained from the Registrar’s office.
Related: Making your will through one simple procedure
Costs and Taxes
When it comes to drawing up a will for estate planning, a critical aspect that comes into play is that the Indian legal system does not impose any inheritance tax.
This means, most assets received through a will do not entail any expense for the inheritor. This is also true for real estate received as a bequest. It requires no stamp duty as it is an inheritance, and not bought.
Likewise, gifts to blood relatives are exempt from inheritance tax, the definition of “relative” being explained under Section 56 of the Income Tax Act. Apart from that, any property valued at over Rs. 50,000 will invite inheritance tax under other sources if received as a gift from a non-relative.
If the service of a qualified lawyer is taken to draft a will and register it, the costs usually vary between Rs. 5,000 and Rs. 8,000. However, this depends on factors such as the city or town in which the testator lives and the reputation of the lawyer.
Law of Inheritance
India has a multiplicity of inheritance laws as these are often religion-specific. Moreover, these laws govern aspects exclusively related with the head dying intestate; which means the individual has died without making a will.
The Hindu Succession Act is applicable for Hindus (including Jains, Buddhists and Sikhs), while the Indian Succession Act comes into play for Christians and people notified as “tribal”. For Muslims, there is the Muslim Personal Law (Shariat) Application Act.
Related: All you need to know about making a Will
No-will Scenario
So, what does happen if one dies without leaving a will? Who do his or her assets go to?
In such a scenario, inherited assets are distributed equally among the legal heirs, with the Indian Succession Act clearly defining the line of legal heirs.
Under this Act, the spouse and children have an equal share. For instance, if a married man with children dies leaving a fixed deposit in the bank, the money will be distributed equally among the children and his widow.
But if there is a nominee named for the account, the bank will transfer the assets to the nominee on receiving the death certificate, from whom it then goes to the legal heirs, as per the Succession Act.
If there is no nominee, then the heir must produce a succession certificate from the court to claim the money in the bank.
Banks usually ask for the original death certificate and a standard format affidavit from the claimants before handing over the deposit.
Related: Estate planning: 10 things to do before you die
Last Word: Validity
One of the most important questions about wills, arguably, is: how long is a will valid?
By definition, a will is a declaration by a deceased made during the person’s lifetime to be in effect after his or her demise. Thus, in theory, a will is enforceable upon demises of the testator and valid till eternity.
However, the validity of a will can be challenged within 12 years of it becoming enforceable after the death of the testator.
Why choose Aegon’s iWill?
The Aegon’s iWill is a detailed booklet that makes writing a Will quick and simple. This booklet allows you to make changes, customise and edit the content on the give legal format. One of the best features of this booklet is that it offers a consolidated list of Assets and Liabilities, which makes the entire procedure hassle-free. It is completely legal and just about anyone can use it. To learn more about the booklet, you can check FAQs on Aegon’s iWill to help you when filling up the details, so you can make your will right away.
When you think of making a will, the image of a lawyer overseeing the entire procedure to ensure it’s done carefully, is usually what pops into your head. However, it does not necessarily have to happen that way. Making a will is quite a simple affair; all it requires is a paper and pen.
Yet, according to Delhi-based lawyer V.K. Verma, author of ‘Making a Will Made Easy’, not many people in India draw up wills; the culture just does not exist. In a previous interview, Verma said he reckoned that as many as three out of four Indians do not make wills. His take: Indians are too “naive” in this respect.
Making a Will
- There is no need to be scared, worried or confused about making a will. However, there are certain things you need to keep in mind before you can create a will.
- There is no fixed format for writing a will under Indian laws.
- A piece of paper and pen are all that’s required, assuming the bequests are or have been legally acquired or inherited.
- The written document becomes a valid living will if it carries the signature of the person making the will – the testator, as well as the signatures of two witnesses attesting it.
- If the testator is unable to write, someone else can do it for him/ her. The testator’s thumb imprint will suffice in lieu of a signature, and here too, it will be deemed a valid document or will if two witnesses attest it.
- Even witnesses can provide their thumb impressions instead of signatures.
Courts recognise handwritten or “holographic” wills. Moreover, the testator does not need to write out a will on stamp paper. A regular A4 sheet bought at a stationery store will do.
As a legal document, a living will falls within that category of instruments that may be optionally registered (Section 18 of the Registration Act, 1908). However, there is also no compulsion to have it registered or notarised.
A testator can also revoke or change his or her will anytime. If this happens, the law gives the second will weightage over the first, even if the first is registered and the amended version is not.
Related: Where There Is a Way, There Can Be a Will
Registration Benefits
While there is no compulsion to get a living will registered, it is advisable to do so.
Additionally, the designated authority for the registration of documents – the Registrar of Sub-Assurances – must be satisfied that the person depositing the will is actually the testator or his agent.
However, a registered will can still be challenged as having been made under undue influence, such as the testator being coerced into wording it in the way it has been.
A major advantage of registering a will is that post-registration, its copy (and sometimes even the original) is kept in the safekeeping of the Registrar. The original can only be withdrawn by the Registrar, the testator, or the testator’s agent, as long as he or she is alive.
On the testator’s death, the original document or its copy remains in the safekeeping of the Registrar, who may permit an applicant to take a copy.
This guarantees that the original living will is not tampered with after the testator’s death. If it is suspected that there has been tampering, one can compare the allegedly tampered document with the one at the Registrar’s office.
Additionally, if the original will gets destroyed in a fire or some other mishap or is even stolen, a copy can be obtained from the Registrar’s office.
Related: Making your will through one simple procedure
Costs and Taxes
When it comes to drawing up a will for estate planning, a critical aspect that comes into play is that the Indian legal system does not impose any inheritance tax.
This means, most assets received through a will do not entail any expense for the inheritor. This is also true for real estate received as a bequest. It requires no stamp duty as it is an inheritance, and not bought.
Likewise, gifts to blood relatives are exempt from inheritance tax, the definition of “relative” being explained under Section 56 of the Income Tax Act. Apart from that, any property valued at over Rs. 50,000 will invite inheritance tax under other sources if received as a gift from a non-relative.
If the service of a qualified lawyer is taken to draft a will and register it, the costs usually vary between Rs. 5,000 and Rs. 8,000. However, this depends on factors such as the city or town in which the testator lives and the reputation of the lawyer.
Law of Inheritance
India has a multiplicity of inheritance laws as these are often religion-specific. Moreover, these laws govern aspects exclusively related with the head dying intestate; which means the individual has died without making a will.
The Hindu Succession Act is applicable for Hindus (including Jains, Buddhists and Sikhs), while the Indian Succession Act comes into play for Christians and people notified as “tribal”. For Muslims, there is the Muslim Personal Law (Shariat) Application Act.
Related: All you need to know about making a Will
No-will Scenario
So, what does happen if one dies without leaving a will? Who do his or her assets go to?
In such a scenario, inherited assets are distributed equally among the legal heirs, with the Indian Succession Act clearly defining the line of legal heirs.
Under this Act, the spouse and children have an equal share. For instance, if a married man with children dies leaving a fixed deposit in the bank, the money will be distributed equally among the children and his widow.
But if there is a nominee named for the account, the bank will transfer the assets to the nominee on receiving the death certificate, from whom it then goes to the legal heirs, as per the Succession Act.
If there is no nominee, then the heir must produce a succession certificate from the court to claim the money in the bank.
Banks usually ask for the original death certificate and a standard format affidavit from the claimants before handing over the deposit.
Related: Estate planning: 10 things to do before you die
Last Word: Validity
One of the most important questions about wills, arguably, is: how long is a will valid?
By definition, a will is a declaration by a deceased made during the person’s lifetime to be in effect after his or her demise. Thus, in theory, a will is enforceable upon demises of the testator and valid till eternity.
However, the validity of a will can be challenged within 12 years of it becoming enforceable after the death of the testator.
Why choose Aegon’s iWill?
The Aegon’s iWill is a detailed booklet that makes writing a Will quick and simple. This booklet allows you to make changes, customise and edit the content on the give legal format. One of the best features of this booklet is that it offers a consolidated list of Assets and Liabilities, which makes the entire procedure hassle-free. It is completely legal and just about anyone can use it. To learn more about the booklet, you can check FAQs on Aegon’s iWill to help you when filling up the details, so you can make your will right away.
