things that should not be included in your will

Step-by-step procedure of drafting a Will in India

A Will is a legal document – it is a declaration of a person’s will on the document that concerns the distribution of assets, money, etc. after their death. It comes into effect only after a person’s death. Whoever is the heir of the will be able to make the decisions based on wealth, property, and assets. 

The Will format for writing one can be handwritten or typed. There must be a witness to this will, a signature attesting that the owner of the will is the same as the person willing to allocate their assets to the sole or multiple heirs. 

If your questions are, “How do I format a will?” or “How to write a Will format” – there is no prescribed format. As long as the allocation of assets is mentioned with attestation, it is a valid document. 

The Will can be edited and altered prior to the person’s demise. 

What are the types of Wills? 

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The Indian Succession Act states the following: 

1. Privileged Wills are those made by people who work for the country; consider their work as a service to the Nation – like Mariner, Soldiers, Airmen, etc. They do not have legal formalities and can be carried forwarded orally or in a written format. They carry forward such wills when people have to fight in a war zone. This is considered to be their ‘what if’ or ‘worst-case scenario’ option. 

2. Unprivileged Wills are for the other types of Wills. Procedures like verification of signatures, witnesses being present, and attesting to the document must adhere.

Is there any format for writing a will? 

Well, that is a yes and no type of answer. 

There is no prescribed format, but certain essentials must be adhered to, like: 

  • The intention of the will take effect after the demise of the person 
  • The Will is a legal document of that very intention 
  • The Will talks about the distribution of assets, property, and wealth 
  • The Will can be revoked, altered, and be modified, prior to the person’s demise.

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Who can format a Will? 

According to Section 59 from the Indian Succession Act, 1925, any person who is of 

  • Sound mind 
  • Person above the age of 18, can draft a Will. 

In addition, a person with an unsound mind can draft a Will, but during the time they have a sound one. A person in such mind cannot comprehend the Will or consequences of the Act. 

If you wish to know the format for Will writing, here is a step-by-step procedure guiding you to execute a Will: 

Picture 2

The subsequent process is a Probate of a Will. It is a legal document and certificate that speaks to the genuineness of the declaration. The certificate can be received by filing a petition. If the whole thing is going smoothly, the Court will supply a Probate to perform the goal of the Will.

The Will must keep the beneficiaries in mind and must be preserved. The registration process must be moral, ethical, and legal, having a documentary presence and ensuring the legal validity of the unprivileged Will. If you are interested in how eSahayak can help you draft a will: 

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How to format a Will, and what must be included in the legal declaration document?

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  1. The details of the testator is necessary as it gives insight into personal information – the name, age, gender, and other identification information.
  2. The Declaration of the Will is important. It gives insight the Will is drafted according to the Sections of the Law – where the person is of legal age and sound of mind. It declares the person was not coerced to draft the Will.
  3. The beneficiary details are crucial as it talks about who will be receiving the benefits from the Will. It informs the distribution of belongings, wealth, and different items. The personal information of the beneficiary must be established, as mentioned above.
  4. The Executor of the Will is important, as the person ensures the Will is moved forward according to the directors given by the testator.
  5. The details of what is going to be distributed or allocated must be stated and determined. 
  6. The division of shares in percentage or amount must be made clear and documented. The specifics must be in detail. If the receiver of the Will is a minor, the custodian of the minor receives the assets till the minor attains legal age to withhold the holdings.
  7. The testator should write down or provide the executor with specific and clear directions on when the receiver should be provided with the benefits of the Will. 
  8. There should be witnesses while drafting the Will. A minimum of two witnesses must be present – they need not be aware of the intricate details of the testament, but the signatures must be present in the bottom of the document. 
  9. When the above is signed and sealed, the testator’s signature is considered as a statement of approval.

Now that there is a clear understanding of the Will format, the below is a process flow:

Picture 4

The laws and rules that must be adhered to while transferring the possessions of the Will are as follows: 

In the Indian Legal context, the laws responsible for the transfer of assets are: 

1. The Indian Stamp Act, 1899 

2. The Indian Registration Act, 1908 

3. The Code of Civil Procedure, 1908

4. The Indian Succession Act, 1925

The layout of Will writing is obvious and thorough, however why should a person write a Will? 

Wills ensure peace and harmony amongst family members. This prevents disputes amongst legal heirs and distributes one’s possessions and belongings based on their wishes. The distribution of said assets can be done in strict proportion amongst various family members, associates, friends, etc.

The executor of the Will is the person who will outline, provide a summary, and keep a lookout for the entire process. The executor must not be the beneficiary of the Will, but can be a friend or family lawyer. If one is not able to find or appoint an executor – the court will appoint an administrator to conduct the responsibilities of an executor. 

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What concerns the legality of the will? 

  • The Will must not be drafted with the person or testator being coerced, 
  • The Will should be signed by witnesses who have been in the same room during the process of formatting the Will. 
  • The Will should be registered, i.e, Probate of a Will must be filed and received. 

What you should avoid while drafting a Will? 

  • Not being thorough and specific about the assets
  • If you are making alterations to the Will and not revoking your previous declarations. 
  • If there are changes in the status of properties, not implementing the modifications in the Will 
  • Not appointing a custodian for the Minor beneficiaries 

It is not crucial to register the Will, that decision solely lies on the testator. In spite of this, if the document is recorded and registered, the proof is that, it is in safe hands. The Will cannot be forged, edited, and revoked by another party. The testator can pick to make a video in which they study the Will before a camera. All this is an addition towards making the Will legit.

If the Will is registered, and if it is going to be tampered with, or lost – a certified copy of the Will can be obtained and made a clear distinction out of. 

Furthermore, in addition to the above, a registered Will can be utilized to edit entries, before a Probate is acquired.

What are the kind of assets that can be included in one? 

The immovable and movable assets, that are, 

  • Estate properties, 
  • Fixed deposits, 
  • Money in the bank, 
  • Securities, 
  • Bonds, 
  • Jewellery like precious metals, 
  • Intellectual property rights, 
  • Trademarks,
  • Companies and Brand names,
  • Insurance Policies,
  • Art Collections,
  • Retirement Benefits, etc.

While drafting a Will, two witnesses who are above the age of 18 and who are of sound mind must attest their signature. Now, if there is an instance, in which a witness dies then the beneficiary of the Will may have to prove that the witness signed it before their demise. 

Due to various possible scenarios, it is suggested that there be an executor, registrar, and administrator that overlooks the process of the Will. 

In India, legal professionals may charge Rs. 3000 to Rs. 7000 to attest and make a Will. Experienced Counsels may charge Rs. 10,000 to Rs. 15,000. 

It is possible to avoid Probate of a Will, but not advised to do so. 

On a different note, a handwritten Will is legal in India, but it must be legible and should follow the format of Will writing. If a Will consists of the essentials in a traditional or digital format with the intention of the testator stated – the Will is valid. The essentials are the property data, biodata, and beneficiary data.

Generate a will @ ₹349

Fill an easy questionnaire and generate you Will @ just ₹349

Consult a lawyer @ ₹3500

Consult with a lawyer before creating a will @ ₹3500

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