How to make a will

The Indian Succession Act 1925 is the general statute on testamentary succession. It defines what a will is, who can make one, how it must be executed, how it is interpreted, and how probate and letters of administration work. Different parts of it apply to different communities, and for Hindus, Buddhists, Sikhs and Jains the testamentary provisions apply while the intestate provisions of the Hindu Succession Act 1956 govern what happens if there is no will.

Muslim testamentary succession sits outside that framework. Under Muslim personal law a bequest is generally limited to a fraction of the net estate after debts and funeral expenses, and a bequest in favour of an heir ordinarily requires the consent of the other heirs after the testator's death. A Muslim will does not need to be in writing at all, though a written one is obviously easier to prove. If you are governed by Muslim personal law, most general advice written about Indian wills does not apply to you without adjustment.

A will disposes of what the testator owns absolutely and beneficially at the date of death. That is a narrower category than people assume.

Property held as part of a Hindu undivided family or a Mitakshara coparcenary is not freely willable in the same way; a coparcener can dispose of their undivided interest by will, but the family property itself devolves by survivorship and partition rules. The 2005 amendment to the Hindu Succession Act made daughters coparceners by birth on the same footing as sons, and the Supreme Court has confirmed that this right does not depend on the father being alive when the amendment took effect. Any will drafted on the older assumption is drafted wrong.

Jointly held property passes according to how it is held. An 'either or survivor' bank account gives the survivor the right to operate the account, which is an operational entitlement rather than a determination of who beneficially owns the balance. Jointly owned immovable property depends on whether the holding is as tenants in common or with a survivorship arrangement, and on what the title document actually says.

Assets with a statutory or contractual destination of their own — a provident fund balance, a gratuity, certain life insurance proceeds held for the benefit of a spouse or children under the relevant statutory provision, an employer's group scheme — may pass outside the estate entirely. Listing them in a will does not override the statute that governs them.

Debts come first. The estate pays funeral expenses, administration costs and debts before legacies. A will that gives away more than the net estate after debts simply produces an abatement of the legacies, in the order the Act prescribes.

Take stock first. List every asset with enough detail to identify it — property with its full description and document reference, bank accounts with the bank and branch, deposits, shares and mutual funds with folio or demat details, insurance policies with numbers, vehicles, jewellery, and anything held jointly. List your liabilities too. Most disputed wills are disputed because an asset was described so loosely that two people could each claim it was theirs.

Decide who gets what, and say it unambiguously. Use full names, relationships and, where possible, an identifying detail. Avoid conditional language you have not thought through, avoid leaving something 'to my children' without saying whether that means equally, and deal expressly with what happens if a beneficiary dies before you. Include a residuary clause covering everything not specifically mentioned — it is the single clause that prevents a partial intestacy.

Name an executor, and a substitute. The executor is the person who collects the assets, pays the debts and distributes the estate, and who applies for probate where probate is needed. Probate can only be granted to an executor named in the will; if none is named, a beneficiary has to apply for letters of administration with the will annexed instead, which is a slower route. Ask the person first.

Write or type it out. There is no prescribed form and no requirement for stamp paper. Date it. State that you are of sound mind and that this is your last will, revoking earlier wills. If you have made a will before, say so and revoke it expressly rather than leaving two documents to be reconciled.

Sign in the presence of two witnesses. The testator must sign, or affix a mark, in such a way that it appears the signature was intended to give effect to the document. Two or more witnesses must each attest — each having seen the testator sign or acknowledge the signature, and each signing in the testator's presence. Have every page initialled by the testator and the witnesses to stop pages being substituted later.

Choose witnesses who take nothing under the will, and whose spouses take nothing either. A bequest to an attesting witness or the witness's spouse is void. Choose people likely to outlive you and easy to trace — their evidence is what proves the will if it is challenged. Recording their full names, addresses and contact details on the document itself is worth more than most drafting refinements.

For an elderly or seriously ill testator, obtain a doctor's certificate of testamentary capacity on the date of execution and attach it. Challenges to wills overwhelmingly allege unsoundness of mind or undue influence, and a contemporaneous medical certificate is the cheapest possible defence against both.

Store the original somewhere the executor can actually get it, and tell them where it is. Keep the number of copies small and mark them as copies. A will that cannot be produced in original raises a presumption that the testator destroyed it — which is exactly the outcome an interested party who holds the only copy may be content with.

Registration of a will is optional under the registration law — wills are specifically among the documents whose registration is not compulsory. This surprises people who assume that a document affecting property must be registered to be effective. It does not apply to wills.

An unregistered will is fully valid and is proved in exactly the same way as a registered one: by producing an attesting witness. Conversely, registration does not make a will genuine, does not prove capacity, and does not stop it being challenged. Courts have consistently treated registration as one circumstance among many rather than as proof.

What registration does give you is a copy in the sub-registrar's records, a date the document cannot be backdated behind, and a small evidential comfort. Where a family dispute is foreseeable, those are worth having. A will can be registered by the testator at the sub-registrar's office, and the registration law also allows a will to be presented for registration after the testator's death by the executor or a claimant under it.

A distinct and under-used facility is deposit. The testator may deposit a will in a sealed cover with the Registrar, endorsed with the testator's name and that of the person presenting it. The Registrar keeps it in a fire-proof box. The testator can withdraw it at any time, and after death it is opened on application. For a testator who does not want the contents known during their lifetime but wants the document to be findable, this is a better answer than a bank locker — a locker becomes part of the estate and can itself require succession formalities to open.

Bank lockers, incidentally, are the most common storage choice and one of the worst. The locker is frozen on death and access typically requires the very documents the will was supposed to help produce. If a locker is used, make sure the survivorship and nomination arrangements on the locker itself allow it to be opened.

Registration charges for a will are nominal and are set by each state's registration department, along with any scanning or copying fees. Because there is no stamp duty on a will, the total cost is small — the fee schedule for your state is published by its stamps and registration department.

Probate is a court's certification that a will is genuine and that the named executor has authority to administer the estate. It is granted by a court of competent jurisdiction on a petition by the executor, supported by evidence of due execution — usually the affidavit and evidence of an attesting witness.

Probate is not universally compulsory in India, and this is a point on which general advice is frequently wrong. Under the Indian Succession Act, the requirement that no right as executor or legatee can be established without probate or letters of administration applies to wills within particular territorial limits — historically the areas of the Bengal presidency and the ordinary original civil jurisdiction of the High Courts at Madras and Bombay — and to immovable property situated within them. In much of the rest of the country probate is optional.

Optional does not mean pointless. Banks, registrars, housing societies and share transfer agents routinely ask for probate or a succession certificate before acting on a will, particularly where the estate is large or a rival claim has been signalled. Where the estate is straightforward and undisputed, an indemnity bond and the institution's own succession formalities are often accepted instead.

Where no executor is named, or the named executor has died or declines, the court grants letters of administration with the will annexed to a beneficiary or other appropriate person. Where there is no will at all, the grant is letters of administration simpliciter, and entitlement follows the intestate succession rules.

The court fee on a grant is charged on the value of the estate under the court fee legislation of the state, and it is ad valorem — which is why probate on a substantial estate is not a nominal expense. Rates and ceilings differ between states and are revised, so take the figure from your state's court fee schedule.

Objections are invited by citation. Where a caveat is entered by someone opposing the grant, the petition converts into a contested testamentary suit, which is full litigation with pleadings, evidence and cross-examination of the attesting witnesses. This is where a well-attested, well-documented will earns its keep and a hastily signed one falls apart.

Case status, cause lists and orders in these proceedings are published through the national eCourts services and can be tracked by case number or party name, which is worth doing rather than relying on periodic updates from a lawyer.

Dying intestate does not mean the state takes the property, which is a persistent myth. It means the law rather than the deceased decides the shares, and it decides them by personal law.

For Hindus, Buddhists, Sikhs and Jains, the Hindu Succession Act 1956 governs. A male's separate property devolves first on Class I heirs, a defined list that includes the widow, sons, daughters and mother, together with specified descendants of predeceased children, all taking simultaneously; only if there is no Class I heir does the estate move to Class II and then to agnates and cognates. A female Hindu's property devolves under separate rules that depend in part on the source from which she acquired it.

For Muslims, the Shariat governs, with fixed shares for specified sharers and the residue to residuaries, and the shares differ between the Sunni and Shia schools.

For Christians and Parsis, the intestate provisions of the Indian Succession Act apply, with distinct schemes for each.

The practical consequence of intestacy is rarely that the wrong people inherit — it is delay and paperwork. Every institution holding an asset needs to satisfy itself who the heirs are, and that means a legal heir certificate from the revenue authority, a succession certificate from a civil court for debts and securities, or letters of administration for the estate at large. Each of those takes months and costs money that a will would have avoided.

The second practical consequence is that intestacy makes no allowance for anyone outside the statutory list. A long-term partner who is not a spouse, a stepchild who was never adopted, a dependent sibling, a caregiver, a charity — none of them takes anything on an intestacy, however clear the deceased's intentions were. If any of those people matter to you, only a will reaches them.

A will speaks from the date of death, not the date of signing, so it should be revisited whenever the facts change: a marriage, a birth, a death, a divorce, a property sale or purchase, a business restructuring, or a move to another state.

Revocation is straightforward. A will can be revoked by a later will or codicil, by a written declaration of an intention to revoke executed with the same formalities as a will, or by the testator burning, tearing or otherwise destroying it with that intention. Destruction by anyone else, or accidental destruction, does not revoke it.

For some communities the testator's marriage automatically revokes an earlier will under the Indian Succession Act. That provision does not apply to Hindus, Buddhists, Sikhs and Jains. Whether it applies to you depends on which part of the Act governs your will, and it is one of the more consequential differences between communities.

Small changes can be made by a codicil — a supplementary document executed with the same formalities, including two witnesses. In practice, for anything more than a trivial amendment, it is cleaner to make a fresh will that expressly revokes the earlier one than to leave a chain of documents to be read together.

Now the nomination point, which is the most consequential misunderstanding in this whole area. A nomination on a bank account, a fixed deposit, a demat account, an insurance policy or a provident fund tells the institution whom to pay. It does not decide who is entitled to keep the money. The nominee receives it, and then holds it subject to the rights of the persons entitled under the will or under intestate succession. Courts have said this repeatedly, and it still surprises families every year.

So keep the two in step. Update nominations when you update the will, and make the nominee and the beneficiary the same person wherever you can. Where they differ deliberately — a nominee chosen for administrative convenience — say so in the will, because an unexplained mismatch is a standing invitation to litigate.

Finally, tell people. A perfectly drafted will nobody can find is worth nothing. Tell the executor it exists and where it is, keep a one-page schedule of assets with it, and update that schedule more often than you update the will itself. If cost is the obstacle to getting advice, free legal aid through the district legal services authority covers will drafting for eligible applicants, and every woman qualifies regardless of income.