Wills are a fundamental part of estate planning, helping individuals legally record their wishes regarding the distribution of assets after their death.

A Will is a legal document that provides clarity and direction to the family and legal system after the death of the Testator. Despite its importance, a Will is often neglected in India due to lack of awareness or misconceptions about its complexity.

This article explains what is a Will, the types of Wills, how to make a valid Will, and what happens if the deceased dies without one.

What Is A Will?

A Will is a legal document that records the last wishes of the person making it (called the Testator) at the time of their death. It includes instructions about the distribution of property, wealth, or responsibilities to the Beneficiaries, also known as heirs.

A last Will and testament ensures that the property of the Testator is divided according to the person’s wishes, rather than being distributed by the default rules of succession.

Why Make A Will?

Creating a Will provides several advantages:

• Legal clarity: Prevents confusion among the legal heirs.
• Avoids disputes: Reduces inheritance conflicts in the family.
• Protects minor children: Appoints guardianship in the Will.
• Customizable: You can include the Executor, specific bequests, and directions for the care of loved ones.

What Happens If There Is No Will?

If the Testator dies without a Will (known as dying intestate), the property is distributed according to the personal laws applicable to the religion or community of the deceased.

This can result in:

• Delay in the transfer of the estate.
• Disputes among the legal heirs.
• Unintended distribution of the estate assets.

Elements Of A Valid Will

A valid Will must meet certain legal criteria:

• Made by a person who is 18 years or older and of sound mind.
• In writing (oral Wills are not recognised under Indian law, except in special cases).
• Signed by the Testator.
• Attested by two Witnesses who also sign the Will.
• Must clearly identify the property, the Beneficiaries, and the Executor.

Types of Wills In India

1. Privileged Wills

Made by members of the armed forces during war or imminent danger.

2. Unprivileged Wills

Made by all other individuals, must follow standard legal requirements.

3. Joint Wills

Created by two persons (usually spouses) deciding how the estate of both will be distributed. A Will and a joint Will are different in structure.

4. Mutual Wills

Where the Testator and spouse leave everything to each other and then to the same Beneficiaries.

5. Holograph Wills

Entirely handwritten by the Testator and signed, but still needs attestation to be valid in India.

Making A Will In India

Step-by-Step Process:

1. List Your Assets: Include moveable and immoveable assets such as bank accounts, property, jewellery, stocks, and business interests.
2. Name Your Beneficiaries: Clearly state who will receive what. Be specific in the allocation.
3. Appoint the Executor: The Executor handles the implementation of the Will and distribution of the estate.
4. Write the Will: Include a declaration that this is your last Will and testament. Mention your name, age, and address at the time of writing.
5. Sign the Will: Sign in the presence of two Witnesses. They must also sign, acknowledging that the Testator signed willingly.
6. Store the Will Safely: Keep it in a secure location and inform a family member or the Executor.

Probate: What Happens After The Death Of The Testator

After the death of the Testator, the Will needs to be executed. In many cases, especially when the Will involves immoveable property, probate (court validation) is necessary.

Probate gives legal authority to the Executor and confirms the authenticity of the Will. It is obtained through a probate court.

Challenges To The Will

A Will can be challenged in court on grounds such as:

• Undue influence or coercion
• Fraud or forgery
• Lack of sound mind at the time of making the Will
• Incorrect signing or witnessing

To minimise challenges, it’s wise to make a Will under the supervision of a legal expert.

Updating A Will

A Will can be updated through a codicil or by creating a new Will. Circumstances such as:

• Marriage (especially changing the husband's surname or maiden name)
• Divorce
• Birth of children
• Change in assets may require a revision of the will.

Executors & Their Duties

The Executor’s responsibilities include:

• Applying for probate if required
• Settling outstanding debts and taxes
• Distributing assets according to the instructions in the Will
• Keeping records of the estate and submitting reports to the court, if needed

If the appointed Executor is unwilling or unable to serve, the court may appoint a personal representative.

Digital Wills & Online Tools

With the advancement of the digital age, you can now make a Will online. While digital Wills are not fully recognised legally in India, online platforms help you draft and register a Will that meets legal standards.

The Bottom Line: How Yellow Can Help

Wills are one of the most important legal documents in personal finance. A Will is not just for the wealthy—it is a vital tool for the smooth transfer of the property and protection of the Testator’s loved ones.

If you haven’t already written your Will, now is the time to make a Will. Keep it simple, clear, and legally compliant. After all, a valid Will ensures peace of mind for you today—and certainty for the ones you leave behind.

At Yellow, we can help you with all aspects of estate planning, including Wills, Trusts, Powers of Attorney, Gift Deeds, Legal Heir and Succession Certificates, and Living Wills. We also offer post-demise and asset transfer services. Our team of legal experts has more than 50 years of combined experience.