FAQs

Your questions answered.


These questions and answers are indicative to assist in understanding general questions which come to our mind while

Will preparation

. If you have any complicated structure in mind or there is potential dispute situation on succession you may like to consult a lawyer

for how to prepare a Will

. This compilation of Frequently Asked Questions (FAQs) is on complimentary basis to generally familiarize you on certain aspects of Will preparation and some of the contents may vary depending upon the individual need and circumstances.

1.   Definitions

A person who dies without leaving a "Will" is said to have died intestate; as per the applicable personal law of the deceased, all his legal heirs, are entitled to the assets of the deceased.
A person who makes and executes a Will is called the Testator.
A female who has made a Will is referred to as a Testatrix. For the purpose of this FAQ, a common word 'Testator' is used.
A written statement of Testator's wishes providing for the disposition of his/ her property after his/her demise.
Immovable Property shall include land, benefits arising out of land, and things attached to the earth, or permanently fastened to anything attached to the earth.
Movable Property shall mean property of every description, except immovable property.
A person, who is entitled to the asset under a “Will” is called a beneficiary. Any person can be a beneficiary, including a Charitable organization or even a public or a private Trust.
(i) any person, subject to the Indian Majority Act, 1875, who has not attained his majority within the meaning of that Act, and any other person who has not completed the age of eighteen years;
(ii) a person who person or property, or both, a guardian under the Code of Civil Procedure, 1908 has been declared or appointed then he shall be deemed to have attained his majority on completion of his age of 21 years and not before;
(iii) and “minority” means the status of any such person
Attestation means signing a document for the purpose of testifying the signature of the Testator.
Witness is the person(s) in whose presence the Testator signs or affixes his mark on the Will and the said person(s) affixes his/her sign / mark on the Will.
A person, who is appointed to look after, administrate and distribute the assets of the Testator, upon his demise, is called an Executor.
“Incapacity” shall mean disability caused by physical or mental deterioration resulting in the individual being unable to manage his/her own affairs or to understand the nature or consequences of his/her actions. “Incapacity” also means any legal incapacity of a person under the law of the domicile or of the habitual residence or of the place of incorporation of that person whether deriving from age or otherwise, as is a minor.
It is a process to establish that a “Will” is valid. It is understood as an order given by the Hon’ble Court, certifying the “Will” as valid.
A letter of administration is an order granted by the Court to a person appointed to settle deceased persons affairs in accordance with a Will where the Testator has failed to appoint an Executor under a Will or where the Executor is appointed under a Will refuses to act or has died before or after proving the Will but before administration of the estate or in case of intestacy.
A Codicil is a document that is executed by a person who had previously made his or her Will, to modify, delete, qualify, or revoke provisions contained in it. A Codicil is a part of the existing Will similar to an addendum but is not a new Will.
An Order issued by an Hon’ble Court certifying the person(s) entitled to the estate of a deceased person and extent thereof.
If you don’t find the definition / explanation of a specific word, please write to us

2.   General concepts and understanding of Will

A Will is a document, considered as a legal declaration of the intention of a Testator about the distribution / disposal of his possessions / assets / properties etc. after his death. The Will would specifically have details of all considerations that the Testator has in mind, to carry out his wish in this regard, after his death.
  • A person who has assets and desire those assets to be inherited by certain specific persons, can write a Will;
  • He/She should be a Major i.e. 18 years of age or more;
  • Should have a sound disposing mind &
  • Should not otherwise be debarred from making a Will by any competent authority.
  • A Will is the best way for you to ensure the distribution of your assets to the beneficiaries, whom you desire the assets to be given, including the extent thereof.
  • It is not about the value of assets you have, it is to ensure that your assets are passed on to your next generation /beneficiaries hassle free.
  • A Will can also be used to appoint a guardian to look after children until they attain maturity or age of 18 years. In case the child / children is/are mentally unstable, the guardian needs to be appointed even if the child / children is / are above 18 years of age.
  • A Will also allows you to choose a person to manage the distribution of your assets. This person is called the Executor.
  • A Will eliminates /reduces the intervention of judicial process /third party intervention for the distribution of the assets upon the demise of the Testator.
If one dies without making a Will, then he is called as have died ‘Intestate’. In this case his estate will be distributed amongst the family members as per the personal/state law of the deceased intestate. In this process, all the legal heirs may get a share in the assets of the deceased, without any regard to the real intentions of the deceased about including or excluding any of the family members or friends. A Will obstructs the natural flow of succession so that assets are inherited as per the wishes of the person (Testator).
The Will document should have:
  • All necessary identifiers of the Testator should be mentioned in the Will. This includes but not limited to Name, Age, Religion, Address etc.
  • A declaration made by Testator to the effect that the present Will is his/her last Will and all other earlier Wills and Codicils are hereby revoked.
  • Clear information about who are the beneficiaries and what is their relationship with the Testator as well as what assets will be given in what proportion to which beneficiary.
  • Specific special clauses which will make a specific beneficiary eligible or non-eligible to inherit the share of the assets of the person (Testator) and conditions, qualifications for the same.
  • Mention about the Will to take effect after the death of the Testator and if necessary, also mention about who will be responsible for the execution of the Will (Executor’s name).
  • A Will must be attested by minimum two persons as witnesses who shall put their signatures in presence of the Testator and the Testator should sign the Will in the presence of the witnesses. Beneficiaries cannot be the witness.
In addition to the above,
  • Will can be modified or altered at any time and any number of times by the Testator during his life time.
  • Will is revocable during the lifetime of the Testator. As long as a Testator is living, he may, at any moment, cancel his Will and make a totally different disposition of his properties.
  • Testator is the person who declares his wish in the Will regarding the disposal of his properties after his / her demise.
  • Executor/s is/are appointed by the Testator, to ensure that the assets are distributed as desired by him/her in the Will. (Optional)
  • beneficiary/ies is/are the person/s to whom the benefits are passed through the Will.
  • Witnesses – 02 (Two)
All movable as well as immovable assets including Real Estate, Fixed Deposits, Money in Bank Account(s) Securities, Bonds, proceeds of Insurance Policies, Retirement benefits, Art, precious metals (Gold, Silver etc.), Brands, Goodwill, digital assets (photographs, sketches, blogs, websites, email accounts such as gmail, yahoo etc. and with social websites such as Facebook, Twitter etc.) and Intellectual Property Rights etc. including what they are and the method and manner of their storage, can be covered under the Will. In short, any assets that the Testator has in his ownership, at the time of his death can be included and distributed as per the desire of the person.
All the Testator’s loved ones who may include the Testator’s spouse, children, step-children, parents, grandparents, grandchildren, friends, relatives and/or any institution like School/s, Temple/s, Community Trust/s, Charitable Trust/s, etc. to whom the Testator wishes to pass on any benefit can be included as the beneficiary/ies in the Will document.
Only to the extent of your share in the joint holding of the assets with any other person can be distributed by you in your Will.
Unless a Will is signed, it is not a legally valid document. A Will Document which is not signed is as good as no Will at all.

A Nominee is a Trustee (or custodian) as per law. Nominee may or may not be the Beneficiary to receive the assets of the deceased. To avoid disputes, it is advisable to write a Will in order to make a comprehensive note of all the assets as well as providing a clear indication about allocation of assets to the beneficiaries. It reduces the hassle of paper work for beneficiaries / legal heirs and avoids the instance of any future dispute over the assets.

It is also advisable to make nomination of securities in accordance with the Will. Both, Nomination and executing a Will are very important. Transfer of assets to the Nominee gives discharge to the creditor / custodian. For e.g.: in the case of a Bank where it is the creditor / custodian of fixed deposits made by the Testator, upon release of the FD to the Nominee the Bank shall stand discharged.

One can bequeath the assets upon his demise to a private or a charitable Trust under the Will. A Trust goes into action and commissions its activities upon the demise of a person. A Trust can be set up for the benefit of family members or such persons who the Testator desires to include as the beneficiaries. This is considered as a good way to address succession related issues on long term basis for the next generation.
One can exclude his immediate family members from being the beneficiary/ies in the self- acquired assets. However, in case of inherited asset/s, the rights of the family members who are legal heirs shall prevail and the Testator has to abide by the law dictating such rights.
Contingent beneficiary/ies is an individual/entity who will receive the share in the estate if the primary beneficiary/ies does not survive the Testator. If contingent beneficiaries are not defined, the share of deceased primary beneficiary/ies will be distributed as per personal/State laws.
Witness to the Will can be anyone who is/are above 18 years of age and of sound mind and capable to enter into a Contract. It is recommended that the beneficiary/ies should not be the witness to the Will.
There should be minimum 02 (Two) witnesses to the Will.
No. However, it is advised that you attach a fitness certificate from your family doctor along with the Will attesting the soundness of mind.
No; the Will can be written on plain paper of any convenient size. It is also not necessary that Will has to be written on legal size paper. In addition, the Will can be hand written and is not necessary to be in typed form. However, for clear legibility and avoid any ambiguity arising due to hand writing, typing in a font size which is naturally readable, is recommended.

Where you think that the Will written by you is likely to be challenged by any person, the Testator may like to exercise the following additional precautions:

  • A Will should be prepared through a trusted Advisor.
  • The Will is witnessed by 2 (two) witnesses as per law.
  • The choice of the witnesses should be good and credible.
  • Process of the writing, executing and witnessing the Will is duly video graphed. A video recording of the Will is admissible by way of evidence.
  • The Will may be registered with the Sub-Registrar of Assurances.

A Nominee is the custodian of the assets belonging to the deceased. Wherever a nominee is appointed, assets of the deceased go in the hands of the nominee. A nominee may or may not be the beneficiary and this can be determined by what is mentioned in the Will. Any creditor or custodian who handovers / transfers the assets to the Nominee is legally discharged of the obligations. Lack of this information can often lead to legal disputes which can be avoided by executing a Will.

Please ensure that for your Bank Accounts, Fixed Deposits Shares, Demat Accounts, Provident Fund, Mutual Funds, you have taken appropriate steps to appoint nominee(s). If the nominee(s) is/are not appointed, upon the demise of the person, several legal complications may arise. Moreover, the beneficiaries will be compelled to obtain Succession Certificate /

Probate

from the Court, which is a time consuming and expensive exercise.

The Testator should not bequeath/mention any ancestral property/assets not owned by him, unless such property or a share in such property has devolved upon him/ come to his possession legally by following due process of law.
No, Testator cannot bequeath/mention the details of the Immovable properties (assets) held outside India. The properties held and owned outside India are governed by the laws of that country where the property is situated and hence, it is advisable to prepare a separate Will for the assets held outside India in accordance with the laws applicable in that country.

3.   Registration and appointment of an Executor

Anyone who is /are above 18 years of age and of sound mind and capable to enter into a Contract, can be appointed as an Executor/s to the Will. One can appoint multiple Executors, one as a primary executor and others as alternate executors.

The Testator has the option to appoint any of his relatives or friends as Executor and mention it in the Will Document.

If the Testator chooses to appoint a professional agency as an Executor, these services are separately availed and paid for as per the terms of the agency who is appointed as an Executor. “Warmond Trustees and Executors Private Limited” also accept Executorship. For this purpose, you are requested to send an email to Mr. Nikhil Mudbhatkal –

It is a common problem as to who should be given the custody of the Will so that someone may take the required action to handle and distribute the estate to the beneficiaries. There are several cases where Will is found in lockers and a great deal of time is lost in even locating the Will upon the demise of the person. Professional Executor can keep the custody of the Will and take the desired actions at the right time.

Professional Executor will have strong legal expertise and can act on your behalf to administer your Will in an independent, efficient and professional manner. We gather all the information required to facilitate in identifying and gathering all your assets and administering your estate as per your Will, thereby assisting your family and making the process less stressful for them. Process can be fairly cumbersome and it is important to go with an institution that will be able to guide through these trying times and regulatory framework. Dealing with an institution also ensures longevity and continuity.

The Will request made through the EzeeWill portal is processed and Will is prepared by a lawyer from the expert lawyer panel of Warmond. In addition, Warmond also provides the services of Executor on a professional basis.

  • Act as an Executor
  • Keeping safe custody of the Will
  • Identifying assets of the deceased
  • Applying for and obtaining the

    Probate

    , Letters of Administration
  • Act as a Trustee
    • Paying debt, duties and expenses
    • Assist in preparing tax returns
    • Assist in protecting business interests
    • Collecting any monies due

Registration of a Will is not mandatory. However, it is advisable to register the Will at the Sub Registrar office to add to its authenticity.

There is no stamp duty payable on Registration of the Will. However, applicable registration charges have to be paid, in addition to any legal services fees for registration of the Will document.

Warmond provides the services towards registration of a Will. This service is separately charged. If you wish to avail of these services, you are requested to send an email to Mr. Nikhil Mudbhatkal –

4.   Most Popular Questions asked by Users

5.   Trust Services

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6.   What should I do if I want to ask a question which does not show above?

If you don't find your answer here, please write to us


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