This post on writing a will yourself is in continuation with my earlier post importance of writing a will in personal finance. In this post I will explain how one should write his WILL and what precautions one has to take while writing a WILL. A bit long post but surely a helpful one
Before getting into detail, let me first explain you some of the technical terms/jargons/parties related to Writing a WILL.
Testator: This is the person who writes the WILL. If a person dies without writing a will then it is called as “died intestate”…means with no WILL. Testator needs to be of sound mind and should be major to write a WILL. In other words testator must retain a degree of understanding to comprehend what he is doing.
Executor: This is the person who executes the WILL. This person will bring the intentions of testator into effect as per WILL. Executor may be specifically appointed by you (testator) (very much recommended) otherwise Court may also appoint an executor who is called as Administrator. Who so ever is going to be appointed as executor should be well informed in advance and should be willing to act so.
Beneficiaries: As the name suggest, beneficiaries are all those who are going to get benefited from the WILL, means the ultimate inheritors of the Assets. Beneficiaries can be anyone as per testator’s choice. Some may not be among family members. It may be an NGO, religious organization, political party…anyone who testator wants his wealth to bequeath to.
Witnesses: There has to be at least 2 witnesses to a WILL to call it a valid will. Witnesses are the persons who observe the signing of the WILL by the testator. When you register a WILL you may be asked to get photos clicked with your witnesses, in the presence of registrar and get pasted on your WILL. These witnesses may be called by court at some later stage to validate the authenticity of testator’s signature (if required)
Now if you have understood the important parties to WILL, its better to make a list of these people first before starting writing a WILL.
How to select an executor to WILL?
The executor is the most important person in the WILL, as it is the executor on whose request probate is granted by court. Probate is certified copy of the WILL which court issues on application of the executor appointed in the WILL. This is done to confirm the validity of the WILL and the executor’s right to administer the estate of the deceased. You cannot just name an executor just like that while writing a will as he/she is under no compulsion to become so. So it is better to inform the person in advance and take his permission if he’s ready to act as executor to your WILL or not. Executor can be anyone from your beneficiaries or can be a third person. He must be honest, faithful and person of confidence, as he’ll be the legal representative for all purposes of a deceased person. It is better to have someone younger to you as executor and as far as possible also appoint an alternate executor to answer the situation in case executor predeceases the testator.
You may also appoint law firm, a company, a trust, a bank etc. individually or jointly with other executor to act as your single or co-executor of WILL.
There has to be at least 2 witnesses to your WILL, without their signatures the WILL would be treated as VOID. Witnesses should not be among your beneficiaries. Witness’s job is not to confirm the content of the WILL, they just have to validate that the testator has signed in their presence.
As per section 63 of succession act, “Will is to be attested by two or more witnesses and each of whom should have seen the testator signing or affixing his mark to Will or has seen other person signing the WILL in the presence and by direction of the testator and each of the witnesses shall sign the WILL in presence of testator”.
As WILL is to be written by person of sound mind, so it is advisable to have one of the witnesses as Doctor who can confirm that you are of sound mind and also if possible get a lawyer as one of the witness, whom you can also take advice from on the legal structure of the WILL.
7 Steps of writing a WILL effectively
Now when you have the name of executor and witnesses in the place, now is the time to start writing the content. Writing a Will starts with a declaration from the testator that it is his last will and he’s of sound mind and ends with confirmation through his signature in presence of 2 witnesses. The will should be written in a simple, clear and unambiguous language so there should not be any confusion over intention of testator. The Object and subject of WILL should be clearly written.
Writing a Will – Step 1:
Every will should begin with the name, description of testator along with a declaration that he is writing it without any undue pressure or coercion and he’s of sound mind. He should also declare that this WILL is his last WILL and supersedes all WILLS written earlier (if any). You may also write the object behind writing a WILL. For e.g:
“I __________Son/Wife/Daughter of ______________________ aged about___________ years, by religion Hindu, by Occupation____________________ residing at ____________________________ do hereby declare my this will as my last WILL which I make this, the ___________day of ___________2014, without any persuasion or coercion and out of my own free will only. Being of sound health, I am conscious that no one is certain about the death which is inevitable for everyone. Hence I do not want that after my death there should be any dispute, difference or misunderstanding amongst/between my legal heirs and any other person(s) interested or uninterested to succeed to my properties both movable and immovable.”
I also here by revoke all my former Wills and Codicils made by me including my earlier Will dated __________________.
Writing a Will – Step 2:
Before giving any details of your assets, Liabilities and beneficiaries, you should appoint executor.
“I appoint Mr/Ms.____________________________ Residing at________________________ to be executor of my this WILL, in the event Mr/Ms __________________________________ were to predecease me , then Mr/Ms _____________________________ residing at______________________ will be the executor of my this will”
The executor will have all the powers under law to implement the directions of the testator and administration of the estate.
You may also appoint a Testamentary Guardian for your Minor child.
Writing a Will – Step 3
List down the name of the beneficiaries / legal heirs, with their age/date of birth and relation Write down the details of every family members even if you don’t want to bequeath anything to him/her.
Writing a Will – Step 4
List down the details of your movable and immovable assets and Liabilities with a proper description
Immovable properties like properties (commercial, residential), Plot should be clearly mentioned with the address and percentage of ownership.
Movable assets should also be detailed with the maximum possible details like their account numbers, locker number, Jewelry weight, Mutual funds, Bonds, Insurance policies, Business equity stake in some company or partnership, household goods and personal effects, Silver utensils etc.
You should also detail the loan or advances taken, of what amount and on which asset, also the balance due as on date and EMI payments being deducted from which bank account. If you have taken any insurance on that loan do mention that too.
Loans and Advances:
You may not be able to write the complete details on your Will itself like folio numbers of Mutual funds, Insurance policies details etc. so its better to prepare a excel sheet list of what all you have along with the contact number of advisors or who to be contacted for what and attach it along with the WILL. Also hand over one copy of the same to your executor or at least inform him that from where he can get all the details.
Writing a Will – Step 5
Now you have to bequest your different assets to different legal heirs or beneficiaries. It is advisable to mention each bequest in separate paragraph or points. For e.g you may write
“I have provided the under mentioned legacies to be spent and given out of my estate and my desire shall be carried out by my executor. I desire that after my demise all my Immovable and Movable assets shall be distributed in the following manner and my desire shall be carried out by my executor:
A.) Property at________________ mentioned in point 4(1) above to be given to __________
B.) All my Mutual funds holdings shall be given away to ______________________________
C.) Insurance Policy proceeds from Policy no. ____________mentioned in () above shall be given away to _________________ and _________________________ in equal proportion.
Financially speaking , this is the point where the importance of investment planning along with estate planning comes into the picture. You should keep your investments simple like not more than 2-3 bank accounts, 6-7 mutual funds folios, 1-2 insurance policies, 1 d’mat account etc. You need to have proper nominees at place in different financial assets like Mutual funds, insurance policies, fixed deposits etc. so your intentions as per WILL should be comfortably taken care of. You should have the same nominees whom you want to bequeath as per your WILL, so there would be no chances of dispute or exchanging of money from one legal heir to another.
Whenever I’ve helped my client in writing a WILL, I specifically mention that all financial assets will be distributed as per the nominees mentioned in the respective investments. If the nominees predecease me than the balance in those investments shall be given to ____________________.
Also make sure that the nominees or legal heirs mentioned in the WILL have all the legal documents available with them to get the balance transferred in their name like having Pan card, KYC compliance, Indian bank account, address proof etc. Precautions should be taken while appointing any NRI as Nominee or legal heir. (Read : nominations and wealth distribution)
Its always advisable to have one nominee/legal heir towards one investment folio, bank account, insurance policy. Also as far as possible avoid bequeathing jointly (to more than 2 heirs).
If you have someone in your heirs whom you don’t want to bequeath anything or bequeath less, do mention reason in a separate paragraph, so there should not be any confusion. Preferably give detailed reason and not like the image below 🙂
Writing a Will – Step 6
You also have to declare that how and whom you want your estate taxes and liabilities to pay. Like you can declare that after my death the income tax, Wealth Tax and Gift tax liabilities, if any shall first be paid out of my estate. Or the specific loan mentioned above __________ shall be paid out of my insurance proceeds.
You should also mention that how, any future asset or liability which you acquire after this day of writing of WILL shall be bequeathed.
Writing a Will – Step 7
This is also the most important point in Writing a will , as without this the WILL shall be treated as VOID.
Here you have to sign the WILL in the presence of 2 witnesses. Date and sign on each page of the WILL. You need to be sure that the witnesses should not be related in anyway to the executor or the beneficiaries. The full name and address of the Witnesses should be clearly mentioned in the WILL
Sharing with you an interesting case of Rs 20,000/- crore property dispute of Maharaja of faridkot (Punjab), where court declared the WILL null and void with reasons like dubious witnesses, spelling mistake etc. Click here to read
Hope the steps mentioned above will help you in writing your WILL or atleast a basic structure of the same which you can then validate from legal professionals. Without estate planning no financial planning is complete, and if you have done your financial planning carefully then you will not find much difficulty in doing estate planning.
So when are you planning to write your will? Do share your views on Writing a Will.