"Where there is a will, there is a relative. Where there isn't a will,
there is chaos"
This statement aptly describes the situation when a person dies without
leaving a will. As we have seen in the past - including for
industrialists - not making a will can lead to family feuds and mud
slinging over inheritance. To avoid such a situation, it is important to
make a will for a peaceful division of your property. After all, death is certain, but the time
Do you want to leave your wealth and let your loved one's fight with
each other to get their shares (a la the Ambanis)? I guess not! If you
nominated some one in all the financial products you bought and thought
that it will be passed to them legally without any issues, you are
living in the world of fantasies (it's a common misconception). You need
to create a 'will' to distribute your wealth in the manner you want to,
and having nominated someone is not the answer.
A Will is defined as "the legal declaration of the intention of the
testator, with respect to his property, which he desires to be carried
into effect after his death." In other words, a Will or a Testament
means a document made by person whereby he disposes of his property, but
such disposal comes into effect only after the death of the testator.
A will can be made by anyone above 21 years of age in India. You can
make the will on plain paper in India. It's not legally necessary to
make the will on stamp paper. It is advisable to write your will in your
own hand writing, as the same can be verified later in case of any
doubts raised by relatives. It might happen that according to your
family structure and your preferences, you want to divide your wealth
unequally or make a provision for a close friend or a faithful servant.
This isn't possible if you die without a will. A lot of us feel that
talking about "Making a Will" is pretty morbid, and hence, we don't look
at it with right attitude.
Why is it so important to make a Will?
A will is so important, that it should be your first step in your
financial life. If your family structure is diverse, and you want to
leave your wealth to different members of family like you want to, you
should prepare your WILL today, not tomorrow, not later. To wit, if you
die without preparing a WILL, your wealth will then be distributed as
per 'Laws of succession' (Government rules, on how wealth should be
divided among family members). A common misconception, is to believe
that all the estate is automatically passed on to the spouse, because
children and sometimes even relatives can stake a claim to the property.
Laws of inheritance and succession, are complicated and diverse in
nature, and are different in case of Hindus and Muslims.
Another point you should consider, is the inconvenience caused to your
family members because of your laziness, in not making a will for them.
In case of a dispute, your family members have to produce the proof
about their relationship with and also have to go helter-skelter to
lawyers and spent money and energy. Much better then, to gift them some
time of yours, and creating a will! This will save them a lot of
headache and heartache.
A will has several parts, which duly completed, make up a complete Will.
Though there is no legal or defined format, some important points while
creating a will are:
Step 1 : Declaration in the beginning
Step 2 : Details of Property and Documents
Step 3 : Details of ownership
Step 4 : Signing the Will
Execution of Will in Court ?
When you are dead, there is someone called an "Executor" who will be
responsible for dividing your wealth amongst the beneficiaries and he
will make sure the whole process is smooth. It is not legally required
to get the will executed in a court of law in presence of a judicial
Magistrate in India. However, if you wish, the will can be executed in
the presence of Magistrate or the public notary, nominated by the
government authorities and sealed in their presence.
Changing the WILL
You can change your will any time you want to. However, make sure that
when you make a new will, you mention that this will is the latest and
supersedes all earlier wills. If you donÃ¯Â¿Â½t, it can complicate the
situation, cause major confusion, make such matters go to the court of
law and take several years before arriving at any final verdict.
Making a Will through Lawyer
'Do-it-yourself' wills often do not contain all the necessary components
as required by law and many times ruled as invalid by courts. Anyone
who might benefit from the ambiguity of the will can jump in to claim a
share and if the courts decide in his/her favour, you would not have had
braced for such conclusions and situations.
Probate Of Will In India
Probate means copy of the will certified under the seal of a court of a
competent jurisdiction. Probate of a will when granted establishes the
Will from the death of the testator and renders valid all intermediate
acts of the executor as such. It is conclusive evidence of the validity
and due execution of the will and of the testamentary capacity of the
A probate differs from succession certificate. A probate is issued by
the court, when a person dies testate i.e.having made a will and the
executor or beneficiary applies to the court for grant of probate. in
case a person has not made a will his legal heirs will have to apply to
the court for grant of a succession certificate which will be given as
per applicable laws of inheritance.
To Who Can A Probate Be Granted
Probate can be granted only to the executor appointed by the will. The
appointment may be express or implied by necessary implication.
It cannot be grated to any person who is a minor or is of unsound mind,
nor to any association of individuals unless it is a company satisfies
the conditions prescribed by the rules made by the State Government.
Persons Eligible For Grant Of Letter Of Administration
Where the deceased was a Hindu, Muhammadan, Buddhist Sikh or Jain or an
exempted person and has died intestate, the court may grant
administration of his estate to any person, who according to the rules
for the distribution of the estate applicable for in the case of such
deceased would be entitled to the whole or any part of such deceased 's
estate. When several of such persons apply for such administration, it
shall be the discretion of the court to grant it to any one of them.
When no such person applies, it may be granted to a creditor of the
Letters of administration entitle the administrator to all rights
belonging to the intestate as effectively as if the administration has
been granted at the moment after his death.
They however do not render valid any intermediate acts of the
administrator tending to the damage of the intestate's estate. For
obtaining a letter of administration the beneficiary has to apply to the
court. The court on receiving satisfactory proof of valid execution of
the will issues letter of administration to the beneficiary. The
application for letter of administration has to contain the following
a. the time of the testator's death
b. that the writing annexed in his last will and testament
c. that it was duly executed
d. the amount of assets which are likely to come to the petitioner's
e. the petitioner is the executor named in the will.