Property Will In India

What is a Will in India?

A will is a formal statement of a person’s intention to transfer their property to a third party, who may or may not be a legitimate heir. A person’s will becomes operative after their death. It is in the form of a document. A will can be changed or revoked whenever the maker is able to dispose of his possessions.

What is Property Will In India?

A Property Will in India is a legal document through which a person, known as the testator, declares their intentions regarding the distribution of their property and assets after their death. It ensures that the property is distributed according to the wishes of the deceased, reducing potential disputes among heirs and beneficiaries.

Indian Succession Act, 1925

Any Indian Hindu, Buddhist, Sikh or Jain person’s will is covered under the Indian Succession Act, 1925. This act does not bind Muslims; only Muslim law governs how they dispose of their property.

Importance of a Property Will in India

1. Avoids Family Disputes

Clearly defines the distribution of property, minimizing conflicts among heirs.

2. Legal Protection 

Ensures that the testator’s wishes are legally enforceable.

3. Tax Efficiency

Can help with effective estate planning and tax benefits.

4. Control Over Property Distribution

Allows the testator to decide who will inherit their property.

Eligibility to make a will paper

A person can make his/her will only if he/she is:

• Sound mind
• Not a minor

Only if they are able to comprehend the meaning and intent of a will can a deaf or dumb person create one. During the period when they were of sound mind, a person who is normally insane can make a will. A person cannot make a will if they are not in a sound state due to illness, intoxication or any other reason.

Key Features of a Property Will in India

• Legal Validity 

It must comply with the Indian Succession Act, 1925, to be legally enforceable.

• Written Document 

Although an oral will is permissible in certain religions, a written will is preferred for better legal standing.

• Voluntary Creation 

The will must be created voluntarily without any undue influence, coercion or fraud.

• Testator’s Capacity 

The testator should be of sound mind and at least 18 years old when making the will.

• Executor Appointment 

The will can name an executor, who ensures that the terms of the will are implemented.

• Witness Requirement

A will must be signed by the testator in the presence of at least two witnesses, who must also sign the document.

Types of Property Included in a Will

1. Immovable Property

Land, houses, apartments and other real estate.

2. Movable Property 

Bank accounts, jewellery, stocks and other personal belongings.

Process of Making a Property Will in India

1. Drafting the Will
   • Include details of the testator, executor and beneficiaries.
   • Clearly list all properties and their intended recipients.
2. Signing the Will
   • Sign the will in the presence of two witnesses.
   • Witnesses must attest that the testator signed the will voluntarily.
3. Registration (Optional)
   • Though not mandatory, registering the will with the Sub-Registrar’s Office adds legal validity and reduces disputes.

Will Documents Required for a Property Will

1. Proof of Identity (e.g., Aadhaar card, PAN card)
2. Proof of Ownership of Property
3. Details of Beneficiaries
4. Medical Certificate (if applicable, to prove soundness of mind)

Validity and Legal Declaration

A testator must be of sound mind and free from undue influence or compulsion for their will to be deemed legitimate.

Making a will is a voluntary process and the final product must accurately represent the deceased’s intentions.

Will Amendments

Anytime during their lifetime, a testator has the right (and should) to revise or modify their will. Changes in circumstances or intentions should be reflected in subsequent wills or codicils, which are revisions to a will.

If a person creates multiple wills, the most current one usually takes precedence over the others, provided it is genuine. 

Specific Bequests and Residual Estate

Ideally, the will should include precise bequests that specify how certain assets or amounts of money are to be allocated. The residual estate, which consists of any assets not expressly bequeathed, should also be covered. 

What is a valid Will?

For a will to be deemed valid, it must meet specific standards. It is equivalent to dying without a will if the court rules that it is invalid. The prerequisites are:

• Legal Age: Legally, a person entering into a will would be mature enough to be able to make a contract. Most states accept people 18 years and over as being eligible to write a will. 
• Capacity: An individual must be of clear mind about the implications of the transaction and appreciate that he/she is preparing a will.
• Intends: People would want to write a will if they wish to make some provisions for the disposition of their properties into a revocable form from their estate in the event of death by signing and dating.
• Voluntary: An act to be taken under one’s own wish and free from being controlled by others; it is not compulsorily done.
• Disposition of Property: Divides up an estate properly since the people who will benefit from all these assets are the family and friends.
• Valid If Signed, Dated and Witnessed: A valid testament has to be signed, dated and then witnessed by others. The number of witnesses might have to follow some specifics in the law state.

Probate Court and Legal Procedures

Probate is essentially the review of a legal validity of any Will for its authenticity.

The Will in India is declared through a competent court in accordance with the Indian succession Act, usually by legal heirs named in the Will, which becomes executor-in-specie. Probate is mandatory in the urban areas of Mumbai, Chennai and Kolkata; however, in respect of immovable property, other states may require probate under specific conditions.

Probate Court Role

The court authenticates the will and gives “letters of administration” with a will annexed. The court will satisfy itself that all legal requirements have been satisfied and also that Testator was making a Will at the time when he had capacity to do so.

Probate Procedures

The first step in starting probate procedures is filing a petition in the proper court. The petition should include the particulars of the deceased person, Will and properties bequeathed to the beneficiaries regarding the same.

Apart from this, a notice of all those persons found to be next in kin must be given, thus allowing them and any other person, proper time to put forward their objections, if any. 

The matter usually proceeds further after the will has been adjudicated properly valid and the Probate is done through a writing called a Probate order, an official approval to the executor to distribute the estate according to the will. 

Jurisdiction Aspects

The jurisdiction to get a Probate for a Will is where the assets are positioned- in an area where the deceased was residing. 

For properties in multiple areas, only one Probate application will suffice for the whole of India. 

Determining the validity of the estate and dividing it might be a difficult and lengthy process because it involves politics and technicalities. It cannot be done by everyone, which is why sometimes people seek help from experts.

The Role of Witnesses in Property Will

Witnesses are essential to the procedure. Their statements may confirm or cast doubt on the Will’s legality, particularly in light of the Testator’s mental health and the conditions surrounding its signing.

Consequences of no Will or Testament

It is called intestate death when a person passes away without leaving a valid will. A person’s assets and possessions will be divided in accordance with personal laws when they pass away intestate.

When a Hindu passes away intestate—that is, without leaving a will—the Hindu Succession Act of 1956 specifies how assets are to be divided. Muslims in India are governed by Mohammedan law. A Muslim’s assets should be inherited in accordance with Mohammedan law. When Christians and Parsis die without leaving a will, their possessions are divided in accordance with the Indian Succession Act of 1925.

Making a will without a lawyer in India is entirely possible and legal, as long as you adhere to the provisions of the Indian Succession Act, 1925. Below is a step-by-step guide to help you create a valid will:

Step-by-Step Guide to Creating a Will Without a Lawyer

1. Understand the Legal Requirements

Before drafting your will, ensure you meet these conditions:

• You must be 18 years or older.
• You must be of sound mind and capable of making decisions.
• The will must be made voluntarily, without coercion, fraud or undue influence.

2. Draft the Will

Write your will on plain paper. There is no specific legal format, but it must include the following details:

1. Title: Write “Last Will and Testament of [Your Name].”
2. Declaration: Declare that:
   • You are of sound mind and making the will voluntarily.
   • This will supersedes any prior wills or codicils.
3. Details of the Testator:
   • Full name, address and age.
   • A statement affirming your soundness of mind and intent to make the will.
4. Appointment of Executor:
   • Name a trusted person as the executor of your will, who will ensure its implementation.
5. Details of Beneficiaries:
   • Clearly mention the names of all beneficiaries and their relationship to you.
   • Specify what portion of your property each beneficiary will receive.
6. List of Assets:
   • Include details of all assets (movable and immovable), such as:
     • Property: Land, houses, flats, etc.
     • Bank accounts: Savings, FDs, etc.
     • Investments: Shares, mutual funds, etc.
     • Personal belongings: Jewelry, vehicles, etc.
7. Special Instructions (if any):
   • Mention specific conditions, if required, for the inheritance of any property.
8. Signature and Date:
   • Sign the will and mention the date of signing.

3. Sign the Will in the Presence of Witnesses

• You must sign the will in the presence of two witnesses.
• The witnesses must:
  • Be adults (18 years or older).
  • Not be beneficiaries of the will.
  • Sign the will in your presence after you have signed it.
• Include their full names, addresses and signatures in the will.

4. Make Copies

• Make multiple copies of the will and inform trusted family members or friends about its existence and location.

5. (Optional) Register the Will

• Registration is not mandatory but is recommended for added authenticity and legal validity.
• Visit the Sub-Registrar’s Office with the original will and the witnesses.
• Pay the nominal registration fee.

Frequently Asked Questions on Property Will In India

Q1. What is the definition of a will in law?

Ans1. A will, in legal terms, is a formal document through which a person, known as the testator, expresses their intention to distribute their property and assets after death.

Q2. What is the legal meaning of a will in India?

Ans2. The legal meaning of a will in India refers to a document that outlines how a person’s property and assets will be distributed among beneficiaries, governed by the Indian Succession Act, 1925.

Q3. How is a will different from other legal agreements?

Ans3. A will is unique because it comes into effect only after the testator’s death and can be revised or revoked by the testator during their lifetime.

Q4. Can a person write a will without a lawyer in India?

Ans4. Yes, writing a will in India without a lawyer is legal. You can draft a will on plain paper, including details about the testator, beneficiaries, assets and witnesses, ensuring it meets the requirements of the Indian Succession Act, 1925.

Q5. What is the meaning of a will paper?

Ans5. A will paper refers to the document on which a person writes their intentions regarding the distribution of property and assets after their death.

Q6. What are the eligibility criteria for writing a will in India?

Ans6. To write a legal will in India, the person must be of sound mind, at least 18 years old and capable of understanding the implications of creating a will.

Q7. How can I make a will for my property in India?

Ans7. To make a will for your property in India, draft the will detailing your assets, beneficiaries and executor. Sign the will in the presence of two witnesses and optionally register it with the Sub-Registrar’s Office for added authenticity.

Q8. What happens if a person dies without making a will?

Ans8. If a person dies without a will, known as intestate death, their property is distributed according to personal laws like the Hindu Succession Act, 1956 or Mohammedan law for Muslims.

Q9. Why is writing a will important in India?

Ans9. Writing a will is important in India to avoid family disputes, ensure proper distribution of assets and provide legal protection for the testator’s wishes after their death.

Q10. What should I include when drafting a legal will in India?

Ans10. A legal will in India should include the testator’s details, list of assets, beneficiaries, an appointed executor, specific bequests and the signatures of two witnesses.