What
is a Will?
Will means the legal declaration of a testator with respect to their
property they desires to be carried into effect after their death.
The legal document completed in accordance with state law that states
how your assets will be distributed on your death, appoints an executor
for your estate, may establish trusts for your children and name a trustee
for those trusts, names guardians for your children, and so forth.
Who can make a Will?
Under the law, one can make a disposition of their property if the following
two conditions are satisfied:
1. If the person is not a minor.
2. The person with a sound mind.
According to Indian Majority Act, a person is said to be major only
on completion of eighteen years for the purpose of making a Will.
A person suffering from mental infirmity cannot make a Will. Persons
who are deaf or dumb can make a Will, provided they should know what
they are doing.
In religions like Hindus, Christian, Parsis, Sikhs and Jews , the general
rule is that for a Will to be valid it must be written. Muslims are
permitted by their personal law to make an Oral Will.
The members of the armed forces employed in an expedition or engaged
in actual warfare and mariners at sea are permitted to make an oral
Will, known as Privileged Will.
The Will can be written in any plain sheet paper of durable quality,
so that it does not tear while handling. A Will can be written on your
own hand using pen. A Handwritten Will is known as a holograph and it
is valid in the Court of Law. Sometimes the handwriting may lead to
some confusions like illegibility. So it is advisable to have the Will
typed. There should be margins on both sides of the pages. It is necessary
to sign or affix thumb impression by the testator in the
Will.
It is absolutely essential that the Will be attested by atleast two
persons. The Will without attestation is invalid. It is very important
that each witness should notice you signing in the Will. Similarly each
attesting witness must sign before you. Eventhough it is not strictly
required by the law that both of the witnesses be present at the same
time. But it is generally good to have both witnesses simultaneously,
so that each person can sign in the presence of others.
Since the execution of
the Will does not result in the immediate transfer of an interest in
an immovable property, it is not necessary to have it registered. Registration
is purely optional. But there are some advantages in
registering your Will.
1. The Will is kept in safe custody amongst the records at the office
of the Sub-Registrar. It
cannot ordinarily be tampered with, destroyed, mutilated , lost or stolen.
2. Nobody can examine your Will and familiarize themselves with its
contents without your
express permission in writing or until after your death.
Revocability is one of
the inherent characteristics of a Will. A Will is not a contract or
an agreement. It is not binding on the testator who is legally free
to change their mind many times as they wishes. Will is liable to be
revoked or altered by its maker at any time when they are competent
to dispose of their property by Will.
Why it's important to make a will
A will sets out who is to benefit from your property and possessions
(your estate) after your death. There are many good reasons to make
a will:
- You can decide
how your assets are shared - if you don't have a will, the law says
who gets what
- If you're an
unmarried couple (whether or not it's a same-sex relationship),
you can make sure your partner is provided for
- If you're divorced,
you can decide whether to leave anything to your former partner
- You can make
sure you don't pay more Inheritance Tax than necessary
Preparing
your will
Although it is possible to write a will by yourself, it is advisable
to use a solicitor as there are various legal formalities you need to
follow to make sure that your will is valid. You may also need legal
advice for more complicated matters. A solicitor can also advise you
about how Inheritance Tax affects you.
A
solicitor may be able to visit you in your own home, care home or hospital.
The
cost of writing up a will can vary between solicitors and will depend
on how complicated your affairs may be and the experience of the solicitor.
As
well as solicitors, voluntary organisations such as Citizens Advice
Bureau and Age Concern can also help with your will.
What should be included
in your will
Before you write
your will or consult a solicitor, it's a good idea to think about what
you want included in your will. You should consider:
- how
much money and what property and possessions you have
- who
you want to benefit from your will
- who
should look after any children under 18 years of age
- who
is going to sort out your estate and carry out your wishes after
your death - that is your executor
An
executor is the person responsible with passing on your estate. You
can appoint an executor by naming them in your will. The courts can
also appoint other people to be responsible for doing this job.
Where to keep your will safe
Once you've made your will, it is important to keep it in a safe place
and tell your executor, close friend or relative where it is. If a solicitor
makes your will, they will normally keep the original and send you a
copy. You can ask for the original if you wish to hold it.
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