'Who gets my shoe collection after I'm dead?' The full and final on making a will

Any conversation about death is usually met with frowns, disapproval or “Why are we talking about this? Don’t be such a buzzkill, yaar“. People don’t want to hear about the farewell party for your mortal remains; whether cremated and scattered over the Indian Ocean or buried under the mango tree in your garden.

Fear is a natural reaction to something so drastic that you have no control over. So then, why not do what you can control? Making a will can ease a lot of possible tension. You won’t have to give up jannat and come back to haunt the family members bickering over who gets your Connaught Place bungalow.

It’s about practicality. We’re so involved in accumulating wealth, name and fame that the thought of making a will to ensure an easy transition for our family doesn’t cross our mind.

“Making a will is important because it’s a legal document where you can voice exactly what you want to happen after you pass,” says Roshan Mani Gupta, a Delhi-based probate lawyer whose job is to assist executors of a person’s will to settle final affairs.

“You decide where everything you worked for through life ends up. After death, this is the only aspect in your power.”

According to The Indian Succession Act, 1925, Gupta explains that there are two types of wills:  privileged and unprivileged.

Privileged wills are for soldiers, people in the navy and airforce “employed in an expedition or actual warfare” and have a different set of rules.

An unprivileged will is what the rest of us make, so we’re going to focus on how to get that done.

When should you consider making a will?

Anyone over the age of 18 and of sound mind can make a valid will. Legally speaking, it means that you weren’t under the influence of drugs and alcohol during the process or “don’t suffer from acute mental illnesses, dementia, Alzheimer’s or other disabilities that would impair your thinking”, says Gupta.

According to him, people over the age of 45, those in large joint families, have remarried, have more than one child, and multiple businesses and properties should have a will.

If you suffer from an ailment that could turn chronic, such as heart disease, having a will in place early on is a good idea.

“People can get ugly when it comes to matters of money and property, claiming their stake of the prize when others are in mourning,” he adds.

“I’ve seen brothers and sisters fight over properties with the brother claiming a larger stake because ‘he’s the son’.”

Different regions and religions might have different rules, so Gupta suggests consulting a lawyer to go over these finer details. Though, a lawyer isn’t necessary to have a legitimate will.

Who all are involved in making a will? 

A simple white sheet of paper will suffice to make the will, unless you’re registering it, in which case, you require stamp paper.

The people involved in the will are: 

1. Testator – The person whose will it is is called the testator.

2. Executor – This person has been identified by the testator to carry out their will to the word after their passing. Have a good think about who you’re going to pick fo this role. It’s an important job with responsibilities that should go to someone you trust.

It can be a family member, a friend, a law firm or even one of the beneficiaries themselves.

“Make sure this is someone you have spoken to and who has agreed to take on this responsibility,” says Gupta.

3. Witnesses –  You should have two witnesses to the signing of your will. They will also be required to sign to prove legitimacy and your state of mind at that moment.

4. Beneficiaries – These are the people to whom you are passing on your possessions. Be it property, jewellery, cars, your business, personal possessions even, as long as you are the sole owner.

The important points to mention in your will

Gupta gives us the basic framework:

1. Titling – One thing that movies got right about wills is the declarative title. “The last will and testament of Anita, the ruler of the world (or you)”  is not a cliche, but part of the standard process.

2. Your details and declaration – In your writing, make clear that you are of sound mind and under no duress while drawing the will. You’ll need to include your personal details: full legal name, age and address, son of/daughter of ABC.

Make a note that the will shall only come into force after your death and it can be revoked or changed by you during your lifetime.

3. Complete list of properties and assets – “You will have to list your immovable and movable properties, both tangible and intangible such as shares owned in a company, any personal stakes with complete details,” says Gupta. Alternatively, you can number the properties and possessions and give complete details as an annex or appendix.

4. Naming the executor – Name the executor of your will, their age, address and your relation to them.

5. Specify the beneficiaries – Identify the family member to whom you are giving what, with their details, along with the numbered properties as you’ve identified them in the annex. This is important so pay attention to the numbering.

6. Signature and witnesses – You have to sign and date the will along with the location in the presence of your witnesses. They’ll then seal the deal by adding their signatures and photographs to the document.

7. Registration (optional) – It’s not necessary to register your will for it to be enforceable but Gupta says doing so has its advantages. In case the original document is damaged or lost, registering it gives you another copy that’s backed up by the legal system and government.

To register your will, you’ll have to make an appointment at the Sub-Registrar office and take both witnesses along.

Are the rules the same for everyone?

While we may have the basics down, it’s not always this simple a process. Religious and community laws can cause some hiccups along the way.

Gupta adds that whether you are a believer or not, after your passing, your will could possibly be contested on grounds of religious laws.

The Hindu Succession Act and Sharia Law, for example, have some different guidelines and allowances, which Gupta says is why it’s a good idea to consult a legal expert when creating your will to mull over these possibilities.

How is the will executed?

Making your will is one big part of the entire process, the second comes its execution. After your passing, your executor may have to apply for probate depending on your state’s requirements. (Probate is the court-supervised process of authenticating a last will and testament.)

There are times when even if a will has been made, objections can arise if one family member is unhappy. Keeping an organised account of bank papers and property details will make it easier for your beneficiaries to access them later on.

Remember that all taxes and debts have to be cleared first.

Depending on the jurisdiction, the executor may be required to file a final accounting form with the court, detailing the execution of the will and clearing of debts and taxes.

The process is a long one, says Gupta, which can take anywhere from eight months to over a year, even if the will isn’t challenged.

“You need to be careful when selecting an executor that will go through with this entire process until the end. You or your lawyer should have an honest conversation with them about what is expected, because it is quite a task which takes patience and trust.”

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