Execution of a Will

By Team Legal Helpline India, May 21, 2020

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Execution of a Will explained with important tips by our legal expert.

Under Indian laws, Execution of a Will  is an important and crucial act through which any person can determines and mandate the distribution or management of all his assets and properties  after his death  in the manner prescribed by him through the will.

Thus a will is a legal document through which one can determine and make provisions for the distribution and management of his properties after his death. The Indian laws do not prescribe any particular process for the Execution of a Will hence it is done in accordance with the common law of prudence.

IMPORTANT TERMS RELATED TO THE EXECUTION OF THE WILL:

TESTATOR: The person who executes or writes the will is called the testator.

ESTATE: The entire property including the movable as well as immovable properties of the person who has died is called estate.

EXECUTOR: The person who is appointed or authorized to execute the will is called the executor.

BENEFICIARY: The person or group of persons in whose  favour the   will has been executed are called the beneficiary.

CODICIL: The document through which additional provisions can be made in the will without changing the will is called Codicil.

SUCCESSION CERTIFICATE: It is the document which is issued by the court validating the will and annexing the same for execution.

PROBATE : It is the process through which the will is executed by the court.

ANCILLIARY PROBATE: When the testator has included the immovable properties situated at various countries, ancillary probate is required after the main probate for the respective property.

LETTER OF ADMINISTRATION: It is the order issued by the court naming the beneficiaries and details of the properties of the deceased,  when there is no will left by the deceased person. 

Pro Bono Supreme Court Lawyer India

IMPORTANT TIPS:

  • The Execution of a Will can be done only by a major having sound state of mind.
  • A will can be registered as per the choice of the testator, it is however not mandatory to register the will under Indian laws after the Execution of a Will .
  • Two attesting witnesses are required to sign on the will testifying that they were present at the time of the Execution of a Will and have seen the person signing on the will without any undue influence in fit state of mind.
  • The person writing his will can write about the distribution of the assets and properties earned by him as per his desire. He cannot include more than the share of the ancestral property which he has inherited while executing the will. 
  • Will should be written in the language known to the person otherwise, a certificate at the end of will that he has understood the contents of the will is required to be given if any other language is used at the time of Execution of a Will.
  • Will can be executed in favour of a minor also and his guardian or custodian for the will can be named.
  • Execution of a Will  can be done for the future children.
  • Future property can not included at the time of execution of a will.
  • A trust can be created under the will and persons can be nominated to the said will.
  • An executor of the will can be appointed at the time of execution of a will who can be any friend, relative or even the beneficiary of the will.
  • Even any NRI as executor or beneficiary can be appointed at the time of execution of a will .
  • It is not necessary to will in favour of descendants, children , relative etc. He can give the properties to any one of his choice, his friends, servants etc.
  • All properties, movable or immovable can be included in the will and distribution of the same can be made by mentioning all this. If any property is not mentioned in the will or any property has been acquired or inherited after the execution of a will, the same will be distributed in accordance with the law of inheritance and not in terms of the will.
  • The properties outside India can also be given through a will but the same needs to be probated from the courts of competent jurisdiction where the property is located. The same can be obtained through ancillary probate . Estate duty is also applicable as per location.
  • Will only operates after the death of the said person; he can change the will at any time.
  • Any addition  in the will can be made through an additional document which is called codicil.
  • Will can be kept under seal without disclosing the contents with the Registrar which can be opened only after the death of the said person. There are special provisions for the same after the execution of a will.
  • Mutual or reciprocal wills between husband and wife or anybody can be made.
  • Joint will can be made by two or more persons.
  • Arbitration can be done in place of Probate proceedings. The probate court (whether it is the District Court or High Court) has been granted and conferred with exclusive jurisdiction to grant probate of a Will of the deceased under the laws of India.
  • The law related to execution of a will is similar on Hindus, Buddha, Jains, Sikhs.
  • Indian Muslims are allowed to bequeath 1/3rd of their estate. However, the testator can exceed its limit on testamentary power of 1/3rd to 1/4th in case where heirs give consent or only heir is husband or wife.

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