Will Registration

What Is a Will? - An Overview

A will stands as a legal document pivotal in the allocation of an individual’s assets upon their demise. The individual crafting a will assumes the role of the testator. It is imperative to maintain a will to avert the distribution of property through the statutory process. In the absence of applying for online will registration, property dispersal occurs via ‘intestate’ succession, a procedure subject to variation based on religion and personal law.

Therefore, it is consistently recommended to prepare a will in advance, ensuring the property’s allocation aligns with the wishes of the deceased. Ideally, the will stipulates the division of property among the deceased’s close relatives or friends. Despite its importance, maintaining a will in advance often falls by the wayside, with many individuals lacking a will altogether or possessing outdated information within it. While will registration is not compulsory in India, opting to register it with the Sub-Registrar offers distinct advantages.

Will Registration in India

Will registration emerges as a crucial legal process ensuring the posthumous distribution of an individual’s assets in accordance with their desires. It serves as a means to safeguard the well-being of loved ones even beyond one’s lifetime. In India, the procedure for will registration is regulated by the Indian Succession Act of 1925.

In the Indian context, will registration isn’t obligatory. Nonetheless, individuals may opt to register their will voluntarily with the Government of India’s sub-registrar’s office, typically by adding an additional witness. While this entails extra effort and expense, it can prove beneficial for the family in the event of a challenge to the will’s authenticity. Registration serves to authenticate the will, obviating the need for witnesses to appear in court.

Essential Components of Will Registration

  1. Personal Details: This encompasses the name, father’s name, date of birth, and residential address of the deceased.
  2. Details of Assets: Comprising a comprehensive listing of assets to be distributed, including both movable and immovable properties owned by the deceased.
  3. Details of Beneficiaries: Clarifying the recipients of assets, with each asset specified alongside the beneficiary’s name and personal particulars.
  4. Signature: The will necessitates the signature of the deceased.
  5. Signature of Witnesses: Will registration mandates the presence of a minimum of two witnesses, whose signatures are also obligatory.
  6. Executor’s Details: Identification of the executor tasked with executing the will posthumously, including their name, address, and other pertinent personal information.

Points to Consider When Drafting a Will

  1. Exercise Extreme Caution: Drafting a will demands meticulous attention.
  2. Clarity of Expression: The testator’s desires should be expressed unequivocally, leaving no room for ambiguity or interpretation.
  3. Avoid Linguistic Conflicts: The will must steer clear of any linguistic conflicts or ambiguities.
  4. Consistency in Clauses: Ensure that no clauses within the will contradict one another, maintaining internal coherence.
  5. Consistent Reading of Provisions: The provisions of the will should be coherent and consistent upon reading.
  6. Flexibility in Timing: Will creation is not restricted by timing and can be undertaken at any juncture.
  7. Accessibility to All: Any individual possessing significant assets can readily create a will, subject to alterations or additions in accordance with their wishes.

Documents Required for Will Registration

  1. Personal Visit to Sub-Registrar’s Office: The individual creating the will must visit the sub-registrar’s office in person, accompanied by two passport-size photographs.
  2. Certification of Mental Fitness: A doctor with an MD or MBBS degree must certify the mental fitness of the testator.
  3. Genuine Signed Will: The will, genuinely signed by the testator, is a requisite document.
  4. Presence of Two Witnesses: Two witnesses, each providing two photos, must be present during the registration process.
  5. Photograph of Testator: A photograph of the testator who crafted the will should be provided.
  6. Proof of Address and Identity of Witnesses: Documentation establishing the address and identity of the two witnesses is necessary.
  7. Documentation of Will Maker’s Address: Proof of address for the individual creating the will is required.
  8. PAN Card of Will Maker and Witnesses: A PAN card showing the details of the will-maker and the two witnesses completes the documentation.

Procedure for Registering a Will

Step 1: Selection of Sub-Registrar’s Office: The testator should visit the sub-registrar’s office situated in their residential area or where the majority of their property is located. Bringing the original will is imperative to ensure its reliability and authenticity during registration.

Step 2: Flexible Timing: Unlike documents with fixed registration timeframes, a will can be registered at the testator’s convenience. This flexibility is crucial as the testator may wish to maintain confidentiality regarding the will’s contents.

Step 3: Scrutiny by Registrar: The registrar meticulously examines the will document for legal accuracy before proceeding with registration. This scrutiny aims to identify and rectify any potential legal errors.

Step 4: Appointment for Registration: Upon completion of the examination, the registrar schedules an appointment for the testator to return to the sub-registrar’s office and finalize the registration process. This appointment system ensures an organized and streamlined registration procedure.

Step 5: Payment of Registration Fee: The testator is required to pay a modest registration fee to the government for the registration of the will. The registration cost may vary from one state to another, and it is the testator’s responsibility to fulfill this financial obligation.

Step 6: Presence of Witnesses: During the registration process, the testator must arrange for two witnesses to accompany them to the sub-registrar’s office. These witnesses play a pivotal role in validating the authenticity and validity of the registration proceedings.

Step 7: Receipt of Registered Will: Upon completion of the registration process, the testator or their authorized representative receives a copy of the registered will. This document serves as an official acknowledgment and is typically issued within one week or longer.

Eligibility for Will Registration

In India, while there exists no legal mandate to register a will, it is strongly advisable to do so to ensure its credibility and legal validity. Any adult, aged at least 18 years and of sound mind, may draft and register a will.

The eligibility criteria for registering a will in India are as follows:

  • The testator must be mentally competent at the time of drafting the will.
  • The testator must be 18 years of age or older.
  • The will must bear the signature of the testator in the presence of at least two witnesses, who themselves must be mentally competent adults aged over 18 years.
  • Both witnesses must sign the will in the presence of the testator.
  • The will must explicitly outline the testator’s assets, beneficiaries, and any specific terms and conditions.
  • It must be drafted in a language comprehensible to the testator.
  • The testator must comprehend the implications of creating a will, and it must not be executed under any form of duress, coercion, or undue influence.

Types of Wills in India

In India, there exist two primary types of wills: privileged wills and unprivileged wills.

  • Privileged Wills: These can be crafted by soldiers, airmen, or mariners engaged in actual warfare or at sea. They do not necessitate witness testimony or notarization.
  • Unprivileged Wills: These must be in writing and signed by the testator in the presence of two witnesses.

Additionally, various other types of wills acknowledged in India include:

  • Mutual Wills: Involving promises made between two individuals regarding property distribution posthumously, typically drafted, signed, and witnessed by both parties.
  • Codicil: An amendment or addition to an existing will, documented in writing and signed by the testator in the presence of two witnesses.
  • Conditional Wills: Subject to specific conditions, such as property distribution contingent upon certain events, like the survival of a spouse.
  • Joint Wills: Crafted jointly by two individuals but distinct from mutual wills, as they do not entail promises between the parties involved.

Advantages and Disadvantages of Will Registration

Advantages:

  • Security of the Will: Online registration ensures the will cannot be lost, damaged, destroyed, or stolen.
  • Safe Custody: The registrar securely holds the will, providing peace of mind regarding its preservation.
  • Privacy Protection: Until the testator’s demise, the will remains inaccessible and cannot be examined without the testator’s explicit written consent.
  • Simplified Property Transfer: In the event of an uncontested registered will, leasehold property can be transferred to legal heirs without the need for a separate will.

Disadvantages:

  • Complex Revocation Process: Compared to revoking an unregistered will, the revocation of a registered will entails a more laborious procedure.
  • Requirement for Recording New Wills: Any new will made subsequent to revoking an existing one must also undergo registration, adding an additional step to the process.

Will Registration Charges in India

Here’s a brief overview of some common registration charges in India:

  • Property Registration Charges: When buying or selling property, registration with the government is mandatory. Fees vary by state and typically range from 1-2% of the property’s value.

  • Vehicle Registration: All vehicles in India, new or used, must be registered with the Regional Transport Office (RTO). Costs depend on the vehicle’s value and type.

  • Company Registration Charges: Registering a company entails fees like registration fees, stamp duty, etc., based on the company type and authorized capital.

Safekeeping of Wills

The responsibility for safeguarding a will falls on the testator, the individual creating the will, to ensure its validity and accessibility for beneficiaries after their passing. While some countries provide national or private will safekeeping services, India lacks such provisions. Hence, it’s vital for the testator to secure the will personally. Distributing copies of the will to beneficiaries is advisable, clearly indicating the number of copies made and stressing that both originals and copies hold equal legal weight. At execution, each beneficiary should receive a copy.

Importance of Safeguarding the Will

Ensuring the will’s safety is crucial to prevent unauthorized access, loss, or damage. Storing it in a secure location such as a safe deposit box or with a trusted lawyer is recommended.

Benefits of Multiple Copies

Distributing copies of the will offers several advantages. It grants beneficiaries access to its contents, mitigates the risk of losing the sole copy, and simplifies retrieval for probate proceedings.

Equal Weight of Original and Copies

The testator should explicitly declare that both the original will and its copies carry equal legal significance, eliminating confusion or disputes over authenticity.

Handing Over Copies to Beneficiaries

Providing each beneficiary with a copy upon execution ensures they understand the testator’s wishes and can prepare for asset distribution.

Who Can Get Access to the Registered Will?

Access to the registered will is restricted from public scrutiny. Only the maker of the will can obtain a copy from the sub-office registrar. Additionally, the executor or a family member of the deceased individual may acquire a copy of the will after undergoing proper identification verification.

Why Trademarkwala?

 

The distribution of one’s property after death is a significant event, and the reading of a will is a customary practice among heirs. Ensuring clarity and specificity in will registration is paramount. A vague or ambiguous will can lead to legal and financial complications for a grieving family. It’s crucial that the division of property aligns with the desires of the testator to avoid any misuse or disputes.

This is why it’s advisable to seek guidance from legal experts who can adeptly draft your will according to your wishes.

At Trademarkwala, we prioritize your interests and tailor your will accordingly. Our team comprises seasoned professionals with comprehensive technical expertise, ensuring a seamless experience for you. With client-centric, reliable, and ethical service standards, we stand ready to provide you with unwavering support throughout the process.

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