WillWritingFAQs - Finlabs India

• Intestate–  a person who dies without making a will.
• Testator– a male person who upon demise has left behind a will.
• Testatrix– a female who upon demise has left behind a will.
• Will Testament– the legal declaration of the intention of a testator/ testatrix with respect to his/ her property which he/ she desires to be carried into effect after his/ her death.
• Immovable Property– Immovable property shall include land, benefits to arise out of land and things attached to the earth, or permanently fastened to anything attached to the earth including flats/ building, etc.
• Movable Property– This would include moveable assets which do not come under the denomination of immovable property such as jewelry, shares, stocks, bank A/c, chattels, mutual funds, etc.
• Beneficiary– a person receiving a benefit under a Will.
• Minor– any person subject to the Indian Majority Act, 1875 who has not attained his majority within the meaning of that Act, and any other person who has not completed the age of eighteen years; and “minority” means the status of any such person;
• Attestation of /Attesting a Will– A will is said to be properly attested when two or more witnesses, each of whom has seen the testator sign or affix his mark to the will or has seen some other person sign the will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark, or of the signature of such other person; and each of the witnesses shall sign the will in the presence of the testator
• Executor– a person to whom the execution of the last Will of a deceased person is, by the testator’s appointment, confided.
• Incapacity– A person rendered incapable of making a will.
• Probate-copy of a will certified under the seal of a court of competent jurisdiction with a grant of administration to the estate of the testator.
• Letter of Administration-Letters of Administration is granted to the beneficiaries after they apply to a Court of law having competent jurisdiction. Letter of Administration entitles the administrator to all rights belonging to the intestate as effectually as if the administration had been granted at the moment after his death. Codicil-an instrument made in relation to a Will, and explaining, altering or adding to its dispositions, and shall be deemed to form part of the Will
• Succession Certificate-Succession certificate is a document issued by a competent court (civil) certifying a rightful person to be the successor of a deceased person. This certificate authorizes the successor(s) to realize debts and securities of the deceased person. In the event the intestate leaves behind only moveable property, applying of Succession Certificate would suffice. However, in the event of the intestate leaving behind immovable property, Letters of Administration would have to be obtained from a court of competent jurisdiction.

A Will is the legal declaration of the intention of a testator/ testatrix with respect to his/ her property which he/ she desires to be carried into effect after his/ her death.

Signature of a will is necessary for execution of the Will and failure to sign would render the will invalid.

This would depend on the type of asset and the nature of ownership of the asset. Accordingly, it would devolve based on survivorship or succession. However, one can always bequeath his/ her share in the asset by way of a Will.

There is no restriction on who can be a beneficiary under a Will. It would be as per the desire of the testator/ testatrix.

A will can cover immovable and moveable property of the testator/ testatrix.

The testator/ testatrix, executor/ executrix, beneficiary, attesting witnesses.

A will does not have any particular format. Every person of sound mind not being a minor may dispose of his/ her property by will. A will is said to be executed if the following conditions are satisfied.

• (a) The testator shall sign or shall affix his mark to the will, or it shall be signed by some other person in his presence and by his direction.
• (b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a will.
• (c) The will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the will or has seen some other person sign the will, in the presence an d by the direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark, or of the signature of such other person; and each of the witnesses shall sign the will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary

If one does without making a will, that person is said to have died intestate. In this event, the assets of the intestate would be determined in accordance with the various laws of succession depending on the religion of the intestate.

The purpose of writing a Will is to record to whom one is desirous of bequeathing his/ her assets/ estate to.

Every person of sound mind not being a minor may dispose of his/ her property by way of a will.

It is never a requirement to make a Will. It is optional irrespective of nomination or not. A nominee is merely a trustee who is entrusted to hold the assets of the deceased until the same are distributed in accordance with the laws of testamentary or intestate succession.

A trust created by will” is a legal mechanism for splitting the ownership and the benefit of an asset created by way of the Will. Upon demise of the testator, the settlor/ trustee(s) would hold certain assets in trust for the beneficiary.

Yes, there are no restrictions on beneficiaries.

A contingent beneficiary is one who is entitled to the assets of the testator in the event of  demise of the primary beneficiary. It is not mandatory to list contingent beneficiaries.

Except for a beneficiary under the Will, anyone can witness attestation of the Will.

At least two witnesses are required to witness execution of the Will.

No

No

Anyone can dispute or challenge a will. However, for abundant caution, one could take certain steps such as registration of the Will, video recording the execution, etc.

A nominee is merely a trustee who is entrusted to hold the assets of the deceased until the same are distributed in accordance with the laws of testamentary or intestate succession.

Ancestral property is not determined under the Hindu succession act or other legislation.  However, ones share in assets of an HUF may be bequeathed by way of a will.

Ancestral property is not determined under the Hindu succession act or other legislation.  However, ones share in assets of an HUF may be bequeathed by way of a will. However, in this case one would have to consider the laws of the foreign country.

There is no restriction on who can be appointed as an executor/ executrix of a will.

No, it is not mandatory to register a Will. There is no stamp duty payable for registration of the Will.

It is ideal to appoint an executor. Yes, a beneficiary may be an executor.

It is advisable to appoint a family member or someone close and trustworthy as an executor of a will. There are no fixed charges for an executor.

Yes

Obtaining a Probate is not compulsory. Yes, it may be obtained for both registered and unregistered Wills.

A contingent beneficiary is one who is entitled to the assets of the testator in the event of demise of the primary beneficiary.

Yes, will created by an NRI will be valid.

Depends on the Muslim law of succession.

Given the uncertainty in life, it is always recommended to not wait till old age to make a Will.

It is not advisable to make an oral will as the same is difficult to prove in court.

Yes

The will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the will or has seen some other person sign the will, in the presence an d by the direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark, or of the signature of such other person; and each of the witnesses shall sign the will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary

No, it is not necessary. Registration ensures that there is a record of the Will in the office of the sub-registrar of assurances. It is a measure for abundant caution.

No

No

By way of trusts or contingent bequests.

They may be added by way of a codicil or a fresh will.

Yes, a new will can be made or a codicil may be prepared subsequent to a will.

A will should be kept in a safe and secure place.

Yes

Heirs determined in accordance with the laws of succession in India.

By creating a fresh subsequent will or by destroying the earlier will.