This blog is a continuation to the previous blog and highlights the following steps which are essential in Will making.
Appoint an Executor:
An Executor is a person who is appointed by the testator (person making a Will) and is authorized to take action on all the testator’s wishes as per the Will. The executor can be anyone: a trusted family friend, a family lawyer or a CA (you can mention a specified amount in the Will to be given to the testator from your assets for his services). One of the best practices is to discuss with the executor whether he is ready to take up the responsibility when required. It is an important duty, and it is best if the person is willing to take it up.
An executor in a Will ensures smooth and faster distribution of assets. For example if the beneficiary wants to transfer a house to his name, in absence of an executor the authorities may ask him to prove that the Will is not challenged by any other legal heirs. However, when an executor is appointed, the executor has the right to implement the provisions mentioned in the Will. After your death, the executor can close bank accounts on your behalf, he can help transfer properties in the name of the beneficiaries, access bank accounts as per the Will etc.
A Beneficiary in the Will can also be appointed as an executor. However, we recommend that only if there is a single beneficiary, you can appoint him/her as the executor. In case, where there are more than one beneficiaries or legal heirs, it is best to appoint a third party as an executor to avoid conflict of interest, thereby, also reducing the chances of the Will being challenged in court.
It is best to appoint a single executor. In case of more than one executor appointed, they have to agree on how to implement each provision of the Will. If there is disagreement between the executors, there will be delay in the execution of the Will.
Appointing an Executor is not mandatory; however, we highly recommend following this practice.
As per the law, a Will should be signed in presence of minimum Two Witnesses. It is not necessary for witnesses to read the content of the Will, they are just to confirm that the Will was signed in their presence. As per the law, witnesses can be called by courts in the event of any question on legality or authenticity of the Will.
It should be noted that the inheritor or the spouse of the inheritor CANNOT sign as Witnesses of the Will.
One of the best methods is video recording while signing the Will. The video recording should show that the Will was signed by the testator without any pressure or coercion in presence of the two Witnesses in the same room. Also, record the Witnesses signing the Will. The video recording, if possible, should be stored with the Will on a pen drive/hard disk. You can also e-mail this video recording to the Executor for the proof to be available with him/her as well.
Appointing a Legal Guardian:
If you have minor children or children with special needs, it is advisable that you appoint a legal guardian. It is important that you discuss with the legal guardian whether they are ready for the responsibility if such an unfortunate time comes. This is the most crucial practice and needs to be followed. Children are the worst affected in these situations. Guaranteeing that minor children will be taken care of in your absence by the person chosen by you ensures safety and stability for the kids amidst the tragedy. Parents believe that the child is loved and will be taken care of by grandparents and close relatives in case of need. However, we reiterate that legally you should allot this responsibility to an individual. There can be various complexities in absence of an appointed guardian. For instance, there may be legal battles between the maternal and paternal sides for the custody of the child. Whenever the court steps in, they take decisions based on the legal circumstances and not on the emotional reasons attached. The court may give custody to a relative or person who you would not have chosen to take care of your child. These situations severely affect the children and scar them for life. To avoid such cases, we highly recommend appointing a guardian on an urgent basis.
Registering the Will:
This happens at the sub-registrar office. The testator along with two witnesses need to visit the registrar office and sign the drafted Will there. One copy of the signed Will is kept at the sub- registrar office for their records. It is not very expensive to register the Will.
Registration is an optional process but is recommended. If you believe there will be disputes and litigations or you believe the Will will be challenged, it is best to register the Will to avoid such scenarios.
In case you prepare a new Will or modify the existing one and do not register it, the latest document is upheld since the Will is a revocable instrument and the last Will holds true. However, to avoid others contesting the new or modified Will, it is advisable to register the latest Will again.
It is highly advisable to register the Will if you have large number of legal beneficiaries, complicated family structures like siblings not on good terms, children from second marriage etc.
Procuring a Medical Certificate:
If you have reason to believe that your mental competence due to old age or any other ailment can be challenged, then the Will may be contested. To avoid this, we recommend the testator procure a medical certificate from a doctor attesting that the Will has been made by the testator in sound mind. This may be of use for the elderly writing a Will. Store a copy of the medical certificate along with the Will.
Couples to make joint or individual Wills:
It is advisable that husband and wife make separate individual Wills. This is because one can predecease the other. For joint properties, mirror Wills should be made so that there is no confusion, and the same assets are not passed on to different people.
Storing the Will:
The Will should be stored in a place where it will not be damaged. If you keep it in bank lockers, ensure that the locker is jointly held so that someone can access the Will. One of the best practices is to keep a sealed copy of the Will with the Executor. You may want to keep the original Will with yourself, however, ensure to make arrangements that people are aware that a Will exists and it is accessible to the Executor when you are no longer around.
If the Will is registered, a copy of the Will is available with the Registrar, one copy can be kept with the Executor while you keep the original Will. Again we reiterate that let a close family member or friend or someone trusted know that you have written a Will and how to find it, remember to mention that you have registered the Will.
The Will not being found defeats the entire purpose of writing a Will.
One of the foremost practices that should be followed but also the most neglected practice. Set a time to review your Will annually or at least once in 2 years. This helps you take stock of your assets, review and reorganize your investments. For example, if you have a fixed deposit for INR 2 lakhs and you want to divide it equally between your two children, you can reorganize and make two fixed deposits of INR 1 lakh each, if you have new additions in the family like a new grandchild and you want to leave something specifically to him/her, any change in life situation like remarriage, death of one of the beneficiaries, minor children becoming adults in which case guardianship needs to be removed etc.
There may also be a change in asset ownership, you may have bought or sold some assets and depending on that you may want to redistribute. There can be several reasons why you need to review your Will periodically.
You can make a new Will as many times as you want or you can make changes through a Codicil which is a Supplementary to the main Will.
Each Will is unique and different. This is something we understand at AasaanWill. Every Will created by us is reviewed line by line and crafted by our team of experienced lawyers. At Aasaan Will, you can create an online Will with 30 minutes of your time and with a cost saving of more than 60 percent.
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