Why you require a will?

Will enables a person to put forth in legal form his wishes after his death or even during the course of his lifetime as to how he wants to distribute his property or estate, to whom and in what proportion etc.

What is will?

A Legal declaration by which a person know as testator in legal terminology names one or more person to manage his/her estate and provides for property distribution in case of his death is termed as a will or testament.   In the absence of a will the distribution of assets/ estate is done by inheritance.

Who should draft your will?

Drafting of a will is another important decision for the testator to decide, for this he can either contact a civil lawyer or write the will by oneself. Since there isn’t any particular format or language for a will it can be written on your own too.

 

 A will not only facilitates the intentions of a person to be known but also aids to secure a peaceful distribution of his assets/ estate either movable or immovable in the manner as mentioned in the will thereby avoiding disputes and conflicts in families. Rather if a person dies without making a will i.e., intestate than his various assets get divided among his legal heirs as per the provisions contained in the Hindu Succession Act. A will isn’t an irrevocable document and can therefore be changed as and when one wants to.  A Will is to be made with free consent. A will brings along confidentiality and provides a legal platform for division of respective assets. It can be on either on a plain paper, stamp paper or can even be notarized. Registration of a will though not being mandatory is always advisable. If a person is intelligent enough, he can benefit his family to save income tax by planning a will in such a manner.

Who can make a will?

Any person who is not a minor or of unsound mind can make a will vide sec 59 of Indian Succession Act 1925, which applies to all Indians, except Muslims. However, the Mohammedan Law is also the same. The Hindu wills Act 1870, read with Indian Succession ( Amendment) Act 1926, states will made by Hindus, Buddhists, Jains and Sikhs is required to be in writing, signed by the testator or any person in his presence by his direction, and attested by at least 2 witnesses. In case of Christians and Parsis are governed by intestate succession.

 

Top 5 important points while preparing a will:-

  • Will should be out of free consent, and should contain the appropriate assets both movable and immovable as how it is to be distributed, to whom and in what proportion.
  • An executor of will plays an important role in concern to the distribution of property and its execution as desired by the testator mentioned in the will after his/her death.
  • Minimum 2 witnesses are required for the formation of a will.
  • A will can be changed as and when required by the testator (person making the will) without informing the beneficiaries of the same.
  • A will can be prepared by any individual who is major and of sound mind or can also appoint a civil lawyer for the same. It need not be registered. It proves as a legal evidence in the court of law.

 

Some other features of a will are stated as under:-

  • A will isn’t a rigid document and therefore can be changed as per requirements without intimating its beneficiaries.
  • Previous wills particulars are to be mentioned in new will.
  • Where previous will was already a registered one, the new will need not be registered. Non registration does not in any way restrain its legal effect.
  • It is mandatory to appoint an executor to a will and is advisory to mention the name of the executor on the will. The executors are entitled to only carry out the wishes of the deceased in relation to the will. The
  • A will can also contain specified legacies & bequest ie, one can make legacies specifically to non relatives too.
  • Conditions can also be attached to such specific legacies or bequest with the help of a will.
  • A liability can also be attached to a will but extent of liability would be limited to the value of assets so inherited in the will.
  • The will should specifically mention various assets of the person making the will as on the date of execution of the will. As assets can change during the course of time.
  • The division of assets can be in form of percentages too as mentioned in the will.
  • Some of the assets can be bequeathed to a specific beneficiary and for the remaining ones percentage divisions can be done.
  • A charitable trust can also be the beneficiary of a will.
  • In case of any suspicious circumstances the court is empowered to deny the grant of probate    (* A probate is a copy of will certified by court)
  •  Undue influence cannot serve as a ground to attack the existence of a will incase where a person is of sound mind as the decision making power is in his own hands.
  • Minimum 2 witnesses are required while framing a will. Selection of witness is an important factor. It is recommended that as far as possible witness should neither be interested parties nor beneficiaries of the will.

 

Tax advantages by framing a  will:-

 

A separate income tax file for HUF (Hindu Undivided Family) can be established by transfer of property through a will. The property can be divided to minor children and minor grand children thereby solving the problem of clubbing of income under provisions u/s 64 (1). Similarly,  transfer of property/ assets can be made by will to one’s spouse or daughter- in- law in order to avoid clubbing of income u/s 64 (1). Given below are few advantages of will incase of tax planning:

  • Tax planning for creation of a Hindu Undivided Family through a will. [Sec 64 (2)]

 

  • Tax planning for bequests to Minor Children and Minor Grand Children through a will. [Sec 64 (1)]

 

  • Tax planning for transfer of funds to Wife by a will. [Sec 64 (1)]

 

  • Tax planning for transfer of Daughter- in –law by a will. [Sec 64 (1) (vi) and (vii)]

 

  • Tax planning by way of creation of Charitable Trust through a will. (Sec 11)

 

  • Tax planning for Discretionary Trust through a will. [Sec 164 (1)]

 

  • Tax planning of Discretionary Trust through a will for Business. [Sec 161 (1A)]

 

  • Assessment of Executor after the Testators Death. (Sec 168)

 

  • Continuance of the File of Deceased Person after Death. (Sec 168)

 

  • Exclusion of income distributed to Specific Legatees [Sec 168 (4)]

 

 

Sample draft of a will:

 

  I, Shri/Smt. ………………………..…………………..son/ wife of Shri ………………………………………………..aged about ……………………….years, by  religion ……….., by occupation merchant/housewife, residing at ………………………………………. declare this to be my last and final Will (revoking all previous Wills) which  I make this, the …………………… day of …………………………..20XX (…………….20XX) without any persuasion or coercion and out of my own Will only.

 

  1. I hereby revoke all former Wills and Codicils made by me including my earlier Will dated ……………………
  2. I appoint Shri……………………….…………….. of ……………………………………. to be the executor of my this Will. In the event Shri ……………………………………………….……were to predecease me then Shri……………………………………… will be the executor of this Will.
  3. The executor will be incharge of my entire estate after my demise.
  4. The Executor will have all the powers under the law to implement the directions regarding the bequests as also for the administration of the Estate in accordance with the provisions of this Will.
  5. The following are my assets:
  1.  Immovable Properties
  1. ………………………………………………………………………………………………………………
  2. ……………………………………………………………………………………………………………….
  3. ……………………………………………………………………………………………………………….
  1. Movable  Assets
  1.  Cash and Bank Balances.
  2. Loans and Advances.
  3. Gold and Diamond Jewellery.
  4. Household Goods and Personal effects.
  5. Bank Fixed Deposits.
  6. Bonds and units of Mutual funds.
  7. Relief bonds of Reserve Bank of India.
  8. Capital Account with Partnership Firm of M/s ………………………………….
  9. Shares and Debentures of various companies.
  10. Silver Utensils.
  11. ……………………………………………………………………………………………………………….
  12. ……………………………………………………………………………………………………………….

 

6.  I have provided the under – mentioned legacies to be spent and given out of my Estate and my desires shall be carried out by my Executor. I declare that after my demise all my Immovable and movable assets shall be distributed in the following manner and my desire shall be carried on by my Executor.

 

A. Property at ……………………………….. to be given to ……………………………………………………………………..

B. Property at ………………………………. to be given away to …………………………………………………………….

C. My share in the partnership firm of M/s. …………………………………………………………………………………. shall be given away to ……………………………………………………..

D. The shares of various companies owned by me as on the date of my death shall be given away to………………………………………………………..

E. The Gold and Diamond Jewellery to be given away to the following:

Name                                                                   Item

………………………………………..                             …………………………………………….

………………………………………..                             …………………………………………….

………………………………………..                             …………………………………………….

F. My household goods and personal effects shall be given away to ……………………………………………

G. All my other assets other than mentioned above shall be given away to …………………………………

 

7. I hereby also declare that after my death the Income tax, Wealth- tax and Gift tax liabilities, if any, shall first be paid out of my Estate.

 

8. I hereby declare this document to be my Last Will and Testament.  I have been read over and explained to me the contents of my this Last Will and Testament and after understanding the meaning thereof, I have executed my this Last Will And Testament in a perfect state of mental condition, and thereafter I have put my signature on this Will as my Last Will and Testament in presence of under mentioned witnesses, who have thereafter put their respective signatures as witnesses of my Last Will and Testament, in my presence.

 

 

In WITNESS WHEREOF, I the said Shri …………………………………………………………………………….. put my signature to this Will, the day, month and year first above written.

SIGNED BY THE ABOVE NAMED TESTATOR Shri ………………………………………………………………………..as his last will at New Delhi in the joint presence of himself and us who at his  request and in such joint presence have hereunder subscribed our name as witnesses:

 

                               

                Dated this ____ day of …….., 20XX.

 

Signed by the withinnamed Testator      )

………………………………………………………………………..   )

in the presence of witnesses, who in his  )

presence and at his request and in the )

presence of each other have put their  )

signatures as witnesses hereunder.  )              TESTATOR

 

WITNESSES:

1.           

Signature                            

                Name                                                   

                Address

 

2.                           

Signature                            

                Name

             Address

 

Also read related article: How to Pay Zero Tax for Income up to Rs 10 Lakhs by CA Chirag Chauhan

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article author CA Nikesh Sheth
Posted On:  2 years ago

It is advisable to take young people to be witnesses of your will


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