Understanding that Will-making is important is a great start to ensuring that your assets are given the treatment they deserve after your demise, but there are a few things one should know about so that one is in full understanding of the power, drawbacks and other incidental aspects of making a Will:
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Legal Requirements
The legal requirement for a valid Will is just the intention to give away your assets after your death (testamentary document), the ability of a person to be qualified to make a will, the mention of one’s wishes in writing, signature of the testator(person making the Will) and the countersigning of the will by 2 witnesses. There are no set formats, no specification of languages, no need for heavy-duty legal language, no need for registration, stamping requirements, etc. While some of these measures may be recommended in certain cases, a simple handwritten will on a plain piece of paper with 2 witnesses’ signatures is also a valid will.
Parties involved
Making a will involves the person making the will (i.e. testator), the person(s) who are to inherit the assets(beneficiaries), the person(s) appointed to carry the will into effect post the demise of the testator and two witnesses who have seen the person sign the will.
Legal sanction:
While the validity of a will has been discussed above, bringing the will into effect may involve certain formalities, including obtaining NOCs from beneficiaries, submission of copies of the will, obtaining the validation of the will from a competent court(the process is called as probate), etc. Having a will does not by default lead to the assets being transferred to the beneficiary. That involves some steps but a will sets the foundation to bring it into effect.
Estate planning
Making a will is a part of the holistic process of estate or inheritance planning. While making a will is the culmination of the entire process, a lot of thought must be put into who you want to give your assets to, how they should be transferred, who all are dependent on you, the nature of family ties, the need for income generation, management of assets, inheritance of family-owned business ownership, etc. One must summarise all these discussion points and draft the will on the basis of that.
Absence of will
In the absence of will or if the will is not found to be validly executed, or is proven to be forged, etc. the assets of the person are distributed on the basis of the personal law applicable to them based on their religion. In certain cases, the division of assets takes place according to the Indian Succession Act.
