Commonly Asked Questions About A Will And Succession

A will is a way to succession planning that ensures that the individual's property or any other asset, is given to the preferred family members without any dispute at the time of property distribution. There are two different ways how the property can be passed on: intestate succession and testamentary succession. While intestate succession applies when there is no legal will and is assumed that all assets will be passed on to the individual's spouse, children or any other family member, testamentary succession is when the property is distributed according to the terms mentioned in the will.

What is the importance of a will?

Usually, individuals don't create a will as it's a given that the property will be passed down to their inheritors also known as legatees. However, many times spoken promises might later lead to different claims. Having a will gives you a legal right and an assurance to distribute your property.

How do you write the will?

1. To write your will, the following people are needed:

• Testator, who writes your will.
• Executor of the will, delegated to ensure that all property is responsibly distributed as per the requirements of the individual.
• Two witnesses to justify the testament.

Note: Stamp paper is not necessary when writing the will.

2. Once the above mentioned people are identified, you can write your will. Be very clear with names and specific about the distribution of the property. 

3. It's  important to mention the specific date so that the latest will is being executed.

4. If any changes are to be made between the intervening period, the structure of the will is to be amended. Further, in case of changing a clause in your will, one needs to prepare a Codicil, also referred to as a supplement of the will. If there are too many changes in your will, make a new one to avoid confusion.

FAQs on will and succession

What can I do if someone creates a counter will without my knowledge?

These situations may arise when there are property disputes in the family. If you are in possession of a valid will but figure out that someone might have created a fake will to counter the genuine one, you can file a case or probate in court challenging the will and get its validity checked. If you are the legal heir, you can't be denied your share by your siblings, advises Mumbai-based lawyer, Varun Vij.

Can a will be registered after the testator's death?

Mumbai-based advocate Vanita Yogesh Opre answers in positive. Show the will and records that prove death of the testator and witnesses, after which, the affidavit has to be filed at the sub-registrar's office claiming that the testator was of sound mind and had prepared the will without any pressure.

Is it compulsory to register a will?

Yes, a registered will holds greater value over an unregistered one.

What is the difference between a nominee and a beneficiary?

In creating a will, one must use correct language. Advocate Rakesh Misar says, "It is recommended that a will be drafted properly after taking legal advice. Any small errors can lead to a huge complication later on. A nominee, is a trustee of an account and a beneficiary is the person entitled by you under will and legal heirs as governed by the succession law. If the will is signed and executed, it will supersede both, legal heirs and nomination.

What if someone creates a second will and registers it?

If your case is genuine, you could always file a petition for adverse possession.

Can ancestral property be bequeathed to only one person in a will?

In case of an ancestral property, you will need to share it with other rightful beneficiaries. However, your father can bequeath his share to whosoever including a single person. However, it is advisable to take legal help to ascertain this.

Can a will be changed after the testator's death?

Suppose Avinash Gupta created a will stating that post his death, his property shall go to his wife Aarti, after which to his son Bala Gupta. The question here may be - can Aarti change the will and choose to bequeath what she has got to her other son Bhavesh Gupta? The answer is no, a will cannot be changed so easily. Advocate Gowaal Padavi, says, "You must file probate of the will. For this you must approach the High Court. The son would not get the complete title of the property without probate."