Step by Step guide to writing a WILL & why it’s so important

By
Hemant Beniwal
39

If you have seen war movies, the soldiers are given time to write their last letters before any fatal combat or assignment. These letters are normally emotional writings talking about their life, memories, remorse and unfinished tasks. In such letters, the solider also gives the family some directions regarding how they can survive if he is no more. Although they are quiet emotional, these letters have some lessons for us as well. We should also write a similar letter (WILL) addressing the spouse or family or people who may be responsible enough to help our survivors in case of an accidental and tragic death.

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Why it’s so important to write a WILL

In case of a death, in the absence of any Will the State rules of intestacy will apply. So the State or Law of the Land will decide on the transfer and maintenance of your estate. Just a question, if you had to appoint a guardian for your kids, would you appoint a “working but drug addict uncle” or a “retired but fit uncle”. The chances are that the court may give custody to the first one as he has earnings and age on his side. And court may not know that he is a drug addict. These kinds of fall outs can be avoided if you have a proper Will in place.

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Most people think that after their death their entire property and financial benefits will pass on to their spouse, automatically. But the truth is that a lot of ungrateful people also get benefitted, eating into the due share of the worthy ones. If you are NRI – things are even more complex.

A one-time effort saves both you and your family a lot of stress and ensures that the beneficiaries of your estate do, in fact receive what is due to them.

Read – NRIs Should Read This Before Making a WILL

Step by Step guide to writing a WILL

A legal Will includes a signature, a date, a statement of legal capacity and soundness to make a Will, witnesses (preferably a neutral one), and typically, a named executor (whose job it is to see that the terms of the Will are executed to the letter). A Will may also include various kinds of testamentary trusts, which take effect and are irrevocable at death.

Some essentials in Will are:

  • Name of executor
  • Guardian for minors
  • Direction on how financial assets will be distributed.
  • Direction on how the family will get their expenses.
  • Direction on how the existing property will be distributed.
  • Direction on how payments, debts and obligations will be provided for.
  • Charity instructions.

A person can make his own WILL and there is no specific format. But a WILL should be detailed enough to cover various clauses which can also be tailored as per the individual’s needs and circumstances. Since there are legalities involved in the language, it is advisable to take the help of a professional. This will help future beneficiaries get their claim on time as non-beneficiaries may challenge in court.

Here are various sections which a WILL should include

1. Introduction: This will contain the name and address of the person making the will. Since there are State laws which determine how the transfer of assets will take place, an introductory clause helps in identifying the state of the testator and nullifying any previous Will which may have been written.

2. Details of assets and liabilities: This clause contains the details of when assets were purchased and who owns them. All this information will be required to determine the value of the assets and the process of transfer of ownership.

3. How payments should be made: There can be various liabilities added during a life time and expenses incurred post the death of the testator. This clause directs all the payments to be made from the estate to creditors or towards expenses incurred.

4. How properties should be distributed: This is the most critical element of any Will as it contains details regarding which assets should be given to whom. A careful thought must be given to this clause and the names of the assets or the amounts and names of beneficiaries to whom these should be transferred should be very clear. If the benefits are going to be for a lifetime, as in the case of a trust, then the manner in which the benefits should be passed on should be made clear.

5. Appointing an executor or nominee: This will carry the name of the person who is being appointed as the executor or even a nominee. In case of minors, this clause will also contain the names of the guardians. If a trust is created, then it contains the names of trustees.

6. Taxation: Any tax which is to be paid towards inheritance or any other taxes can be directed from the estate through this clause.

7. Attesting the Will: Every Will has to be written and should carry the signature of the person who has written it. Signing on every page of the Will is a good precaution, when it is long enough. This protects it from the possibility of any changes being made by anyone other than the testator.

8. Witnessing: Finally, a Will has to be written in the presence of witnesses to confirm it is of the deceased. This clause will carry the details, like names, addresses and signatures, of the witnesses.

Importance of writing a WILL

If you would like to understand more about Estate Planning or Hindu Succession Act or Power of Attorney or data gathering process for a WILL or looking for Sample Formats – I have covered that in my book “Financial Life Planning” – click here

Do you have a WILL? If not, what you are waiting for…… If you have any questions regarding WILL, feel free to add in comment section.

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39 COMMENTS

  1. What is the mininmum amount one should have to make a will.?
    If your money is already invested in MF-Shares-FD-SavingsA/C and a Nominee is alread specified then do you need the will.??

    • Yes.
      A nominee is merely a care taker who holds the asset for the legal heir, a nominee may or may not be the legal heir.

      Your banker/MF agent may tell the nominee will receive the money which is true, but the legal heir can challenge this and stop the issuing bank/AMC/Insurer etc. to part with the asset.

      Making a will/trust is the right way to transfer your assets.
      There is no minimum criteria

  2. Pl let me know about ur book on financial planning – what topics it covers & whether book is available in mumbai for quik overall observation before purchase
    pl letme know address

  3. Very nicely written about will by Mr. Hemant (TFL GUIDE)
    I wish to add that if a Will is registered , it has more value and no body can question on the will that it is geniune or not after death of perosn making a will.

  4. can you please let us know that even if nominee is specified for shares or inidan stocks, is there any need for any will?

    • Hi Swapna,

      As per law Nominee is only a custodian and so legal heirs can claim the money after the death of the investor. The only exception are the shares where the nominee is the actual heir of the stocks.
      Its advisable to write a Will so that the transfer of the assets after death can be smoothen.

    • Swapna, In the case of shares or d’mat account in particular nominee supersedes the WILL as per company’s law. This is the only product or investment where you can say that WILL may not be required. But i am sure that people have many other kind of financial and real assets in there portfolio, so writing a will is always better for proper and comfortable distribution of assets and liabilities among the family members or any body you want.
      Also do mention the d’mat details in the WILL also.

  5. 1. would it be alright to make your spouse only, the beneficiary of all the assets-movable as well as immovable?
    2. can only your spouse be made the beneficiary for your share in assets also, despite of some share in those assets already?
    3. if nomination has already been done, i understand that only beneficiary will be the nominee irrespective of any will. isn’t it legally correct?
    4. should both life-partners make each other only the beneficiary?
    5. should both of them make a third will also, making only the children beneficiaries to take care of unforeseen event of them getting deceased together?
    6. does law require equal share to every one-spouse as well as each child or his/her children(if he/she has deceased), irrespective of depriving some of them?
    7. can any of the children or some other person contest such wills?
    8. are both legal professional(for writing will) & executor required?
    9. should the will be registered?

    • Hi Vinod,

      As per Hindu law if one dies intestate i.e. without making a Will then his/her wealth is distributed as per Indian Succession Act. So legal heirs i.e. spouse & children’s get the share as defined in the act. There are Class I,II,III heirs where spouse and children are Class I heirs and the first claimaint of the wealth.
      Yes its advisable to write a will and clearly states your wishes i.e. in what manner the estate should be distributed and to whom. Two witnesses and executor are required which you should state clearly and have the will registered, although not mandated.

  6. Thanks for the informative article. I have following questions:
    1. Is there any standard legal language that one needs to ensure, since I would not like my beneficiaries to suffer in case of any lapse on part of the lawyer drawing the will?
    2. In case of liquid investments like MFs and FDs, is it necessary to list each one separately, or can a general statement for each type of investment suffice?

    • Hi Dhruv,

      1. There si no standard language of the Will but the content should state your wishes clearly and in a simple language. Its good to avoid use of jargons which can add to the easy misrepresentation of what you want to say.
      2. The listing of assets in the will depends n the frequency of the change in your assets. Its good to include as much information as possible but assets like mutual funds or FDs can change. Here you can include language like possession of assets which you acquire and holds as on the date of your death & where you are the absolute owner and have absolute powers wrt disposability of these assets. The exact language you can create with the help of professionals or even you can get sample Wills on the web.

  7. Dear Hemant,

    This is another excellent article on a very often referred to and misleading topic , capable of guiding us into an unambiguous preparation and follow up on the power of choosing one’s own actions for his progeny ! With an increase in the sordid activities of misguided children who do not respect their parents in old-age, the WILL will definitely help to create a clear direction on sharing the wealth of a person after his demise ! Thanks a lot to you and to your teams for bringing out this note !

  8. You have stated above that ‘it is more complex in case of NRIs’
    I am an NRI resident in USA . My children are also in USA. I have assets in India both immovable and bank balances.
    What special care I should take in redrafting my Will.

    • Hi Ramesh,

      For an NRI its more wise to make two seperate Wills- one for Indian properties and other for overseas assets. The primary reason for this is that if you make a single will for all your global assets, then it will have to meet the laws of respective countries which is a big challenge. Also while drafting your will you should mention the beneficiary and the assets they are going to inherit very clearly. Have two local witnesses so that if the Will is challenged, they can be produced easily.Lastly, get it registered which will give more authentication.

  9. My grandfather has written a WILL and was leagally attested. The WILL details was informed to all his 4 sons. However, one fine morning after a year my grandfather cancelled the WILL legally. But the 4 sons are still holding on to the same property as was mentuioned in the cancelled WILL.

    However, now what is the way out? The Land Tax for these properties as mentioned in the Cancelled Will is paid by the concerned sons and has been in their pocession for more than 27 years. Is there any legal objection in registering the land in the name of the person mentioned in the cancelled WILL?

    Now two sons have passed away, who would have the onwership of the property? All sons have constructed houses in their designated land, will there be any legal objection to this at any point of time?

  10. hello sir, very good article. please write an article regarding probating the will. many people does not know it. once a person ceases after writing the will, it has to be probated at the earliest.

  12. Is it required to make the will on a stamp paper
    & register it.
    I am Catholic by religion. Any particular advise
    for succession planing & inheritance.

    • Hi Arul,

      A will even on a plain paper is acceptable. Registration is advisable to give it more authentication. But even that can also be contested.

      • once a person ceases , the will has to be probated, for which a good lawyer has to be consulted. he will file it in the court and get direction to activate the will. there is certain procedure. lawyer is the best to explain it. i am lay man, whatever i know and my experience i have written

  14. Your post is detailed and well written. For long, people in our country used to shy away from discussing the distribution of their assets once they passed on. Today,Estate planning has become an essential part of financial planning and there is a growing awareness of the merits of preparing a will and avoiding any un necessary fights over property and inheritance between their near and dear ones.

  15. Really appreciate the topic “WILL” . It is very useful to know the content of a WILL when you have to execute it. The presentation of the subject in a structured manner is good. The information provided while writing a WILL is informatory and useful for all in all walks of life.

  16. Can a registered Will be changed by a unregistered Will?.Some time back there was a news in a daily news paper about a latest ruling of Supreme court of India that a registered WILL can only be changed by a registered WILL and not by an unregistered WILL. If so kindly state its citation.

  17. I believe that a Will should also be registered so that it is foolproof and cannot be challenged Do different States in India have different rules as regard registering the Will eg, in Mumbai a Will need not be registered but in Goa it is not valid till registered, Please comment

    • Hi Ubaldo,

      Yes states may have different rules regarding registration of a Will. But you have said it rightly that even you should get it registered properly attested by witnesses and if viable supported by a doctor certificate.

  18. WE had a WILL made by our Grandfather. Unfortunately, one fine morning morning my grandfather went and cancelled theWILL. However, all sons know what property belongs to them and build their houses in the property as per the pervious WILL. Grandfather passed away. Sons have no dispute over their allocated land. Please provide information on the way out to have the designated property in the sons names?

  19. What denomination of Court Stamp Paper one should use while writing a WILL ? Does the value vary according to the total asset Value ?
    What exactly is the legal process of REGISTRATION OF WILL ? Is it to be attested by a First Class Magistrate or merely by NOTARY or register in CIVIL COURT ?
    Incase of bequeathing property to reputed Charitable Organization , as a safe measure the concerned organization need to be made aware of in advance thus eliminating suppression / malafide challenge by legal heirs as per Hindu succession Act —– I personally believe.

    • Hi Sankar,
      A will even on a plain paper is acceptable. Registration is advisable to give it more authentication. For Registration of WILL, it is to be done by Registrar or Sub-registrar with nominal registration fees.
      Please consult a Civil lawyer for more details.

    • Hi Sankar,
      A will even on a plain paper is acceptable. Registration is advisable to give it more authentication. A will is to be registered with the registrar or sub-registrar with a nominal registration fee.
      Please consult a civil lawyer for more details.

    • Hi Sankar

      A will even on a plain paper is acceptable. Registration is advisable to give it more authentication. A will is to be registered with the registrar or sub-registrar with a nominal registration fee.
      Please consult a civil lawyer for details

  20. Hi Sankar,
    A will even on a plain paper is acceptable. Registration is advisable to give it more authentication. A will is to be registered with the registrar or sub-registrar by nominal registration fees.
    Please consult a civil lawyer for details.

  21. A will even on a plain paper is acceptable. Registration is advisable to give it more authentication. A will is to be registered with the registrar or sub-registrar with a nominal registration fee.
    Please consult a civil lawyer for details.

  22. Have certain basic things be covered in the article? eg can the executor be one of the beneficiaries or vice a versa? Can witness be beneficiary ro vice versa?

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