Depending on your religion, there are different rules with respect to how your assets and property will be distributed after your death. However, if you make a will, your assets and property will be distributed among the people of your choosing and the specific religious rules do not generally apply.
As a Hindu person, the rules of inheritance under a law known as the Hindu Succession Act, 1956, are applicable.
Similarly as a Muslim, the rules applicable to inheritance will be according to Muslim personal law (unless you are married under the law on civil marriages). If Muslim personal law becomes applicable, you cannot distribute your entire property to people who are not your legal heirs. You can only will away one-third of your property to someone else and the remaining two-third has to be distributed among your legal heirs.
You can make a will at any point during your lifetime if you are a
- Person of sound mind, and
- Over the age of 18.
The person making the will should be aware of what they are doing.
Illustratively, a person with mental disabilities can also make a will when they are aware of what they are doing. If a person is under the influence of alcohol and does not know what they are doing, then they cannot make a will.
For a will to be valid:
- It must have your signature (or your thumb impression).
- The signing/fingerprinting should be done in the presence of two other people who will act as witnesses.
- Both witnesses will sign the will or put their thumb-impression in your presence.
You can also direct someone else to sign your will in your presence. There is no prescribed format or prescribed place for this signing. Anyone can be a witness to your will – including the executor.
You can give away all of your property over which you have complete ownership. You cannot give away property which you do not own. In some cases, you may have a life interest in the property, i.e. when someone has given you the property under their will only to use for your lifetime, but you do not own it.
You may include any movable or immovable property which you have acquired by yourself. If you are a member of a Hindu joint family, you can only give away your portion of the ancestral property in a will.
The person to whom you give the duty of carrying out the instructions given in your will, after your death, is called the executor of the will.
You can appoint any person who is of sound mind and who is above 18 years of age to be your executor. You must choose a person with whom you have full confidence and who is willing and capable of acting as the executor.
When you haven’t appointed an executor in your will, the court has the power to appoint an administrator who will execute your will.
The court has the power to appoint an administrator or an executor who will execute your will if:
- You haven’t appointed an executor in your will.
- The executor you appointed is incapable of acting as an executor.
- The executor you appointed refuses to act as an executor.
If you are the beneficiary of a will which does not have an executor or if the person named does not want to perform the functions, you can apply to the court for appointment of an administrator.
When a person dies without naming an executor in his or her will, one of the beneficiaries in the will has to apply for a grant of letters of administration. The process for the same is similar to that for the grant of probate.
Registering a will is not compulsory. In case you decide to register the will, you may do so personally or through an authorised agent. You have to deposit the will in a sealed cover with your name on it and of your agent (if any), along with a statement of the nature of document to the Registrar of Sub-Assurances of local division. Once the Registrar receives the cover and is satisfied, she will keep the sealed cover in his custody.
Generally, you do not have to pay stamp duty on wills. However, you will have to pay registration fees which will differ in different states. Procedures might also be different.
If you want to recover the will (say for changing it or for revoking it), you may apply either personally or through a duly authorised agent to the Registrar and if the Registrar is satisfied that either you or your agent have applied, she will return it. On your death, a person can make an application to the registrar to allow to get the will or see the contents of the will.
If you’ve made changes to the will through a codicil, you should ideally get it registered in the same manner.
You can change your will as many times as you want. It is possible to make changes to your will even if it’s been registered.
Ideally, if you are making substantive changes to a will in order to convey your wishes properly, you should execute a codicil. A codicil is a written statement which supplements or modifies an existing will. It must be executed in the same manner as that of the original will.
You can also make changes by deleting, modifying or inserting new language in a will, you should sign and get the signature of the witnesses in the margins near the changes or at the end of the will by making a reference to the changes. No other changes can be made to an already executed will (unless it has been made to make it clear or legible).
In certain cases, it is necessary to obtain a probate of the will in order to establish your right as a beneficiary of the will. You will have to apply to the court for a probate. It is a certification by the court with respect to the genuineness and validity of execution of the will. Getting a probate does not, however, mean that your title to the property has been established. This is essentially an official evidence of the executor’s right to administer the estate of the deceased. While there is no specific deadline by which you need to obtain the probate, you should avoid long delays.
A probate is compulsory for wills of Hindus, Buddhists, Jains and Sikhs in Chennai and Mumbai or if their property is in Chennai and Mumbai. It is also applicable to Christians outside Kerala and Parsis (who died after 1962) in Kolkata, Chennai and Mumbai. Please confirm with a lawyer if you should get a probate for the will.