When there is “Will” there is a better way

Some people think that we should think of a “Will” only during our last days and that it is ominous to talk about it when we are healthy. If you own hard-earned property and you would like to bequeath it to your children without them undergoing undue hardship in inheriting it, then the best way to do it, if you have substantial property, is to create a “Living Trust” wherein you are the trustee. The assets held in your living trust could be managed by the trustee and distributed according to your directions without court supervision and involvement. This can save your heirs time and money. And because the trust would not be under the direct management of the probate court, your assets and their value (as well as your beneficiaries' identities) would not become a public record.
But when your assets, especially real estate, is not great, then a “Will” is the better option.

The following aspects can be had in mind while executing a will.

A will can be made on a plain paper—it doesn’t have to be on a judicial/non-judicial stamp paper. It can be either typed or handwritten, but the latter is preferred as its genuineness can be established if the need arises.
The first paragraph always contains a clause that states that the will has been made in one’s full senses and without any kind of pressure. After listing all the assets, an approximate current value of the house, land, or any other property should be clearly mentioned in the will. Assets like bank fixed deposits, postal investments, mutual funds and share certificates should also be covered.
The will should be handed over to a trustworthy person after signing it in the presence of at least two independent witnesses. These witnesses have to sign it after the testator’s (person making the will) signature, certifying that the will has been signed in their presence. The date and place also must be indicated clearly at the bottom of the will, and all the pages must be signed by the testator and all the witnesses.
However, the will can be executed in the presence of the Local District Registrar and sealed in their presence.
A will should contain the following clauses:
1. Clause to specify bequeathing of property in whatever form at the time of death to the executors (the person who will implement the will after the testator’s death).
2. Clause to specify bequeathing of property (both movable and immovable) to the members, with names and the share each would receive.
3. Clause to clarify if the executors are to pay the income generated from such property to any other family member.
4. Clause to clarify circumstances when the executors die before the death of the testator.
5. Clause to ascertain who would hold the property in case bequeathed on minors until they are major.
6. Clause to clarify payment of probate (Probate means to “prove” the validity of the last will and testament. It’s a legal process carried out in courts).
7. Clause for payment of any liabilities incurred in the past or during ceremonies to be conducted upon death.
8. Clause to include free will and sound health of the testator.
9. Clause to specify division of property between the daughters, and implications on the will if they are married. It should also specify circumstances when they remain unmarried.

In a nutshell, it can be in the following format.


I, _ _ _ _ _ _ _ , son/wife of _ _ _ _ _ _ _ ,resident of _ _ _ _ _ _ _ ,age _ _ years, am making this will on the _ _ day of _ _ _ _ _ _ _ out of my free volition and without any coercion or undue influence whatsoever and state that this is my last will and that I hereby revoke all Wills and codicil made by me at any time heretoforce, I bequeath my property , interests and other rights as follows:
1. I bequeath on my death to _ _ _ _ _ _ _ ,my title interests and all other rights which i have as owner of the residential / Commercial Property at _ _ _ _ _ _ _ , I hereby sate that he shall be
entitled to use and enjoy the said property at his own will after my death.

2. I bequeath on my death the following ornaments and jewellery belonging to me to _ _ _ _ _ (Give the list of the ornaments)

3. I bequeath on my death, cash balances lying with me at the time of the death to _ _ _ _ _ _

4. I bequeath on my death, bank balance lying in my name at Savings/Current Bank Account No._ _ _ _ Bank of _ _ _ _ _ _ _ ,_ _ _ _ _ _ _ Branch, _ _ _ _ _ _ _ at the time of my death to _ _ _ _ _ _ _ .

5. I bequeath the amounts receivable by me the time of my death from various parties on various accounts to _ _ _ _ _ _ _ .

6. I bequeath the amonts and other valuables owned by me and lying in locker number _ _ _ in my name at Bank _ _ _ _ , Branch at the time of my death to _ _ _ _ _ _ _ .

7. I direct that a sum of rupees _ _ _ _ Only (Rs. _ _ _ _ /-) be set apart from my assets at the time of my death and be donated to a charitable trust or persons whose aim and objective is to provide food, medical assistance, education assistance, etc to the needy persons.

8. I direct that before distributing my assets in accordance with this will , all my debts , liabilities and monetary obligations including all testamentary expenses, costs, charges,expenses in respect to probate and other legal charges at the time of my death be met out of my assets.

9. I bequeath all the other residuary property , assets and other rights whether or not existing at the time of my death to _ _ _ _ _ _ _ .

I further state that Mr, _ _ _ _ _ _ _ is appointed as the executor of the this will.

I declare that I am the owner of the properties mentioned in this will and an entitled to make this will. I am of sound mind and health at the time of making this will.

In witness whereof , I have hereunto set and subscribed my hand and signature on this _ _ day of _ _ _ _ _ _ _ .

ature of the Testator.

Signed by Mr. _ _ _ _ _ _ _ on his last will and testament, all being present at the same time. Thereafter at his request and in his presence, We subscribed our respective names and signatures as attesting witnesses all being also present at the same time.

Signature of the Witnesses
1. I have witnessed and read the aforesaid will.


2. I have witnessed and read the aforesaid will.


3. I have examined Mr. _ _ _ _ _ _ _ on the date of this will and wish to state that he appears to be in of sound mind and sound mental health at the time of making the above will.

Sign of doctor.

However after the death of the executor, the 'will' has to be probated which is a very time-consuming, cumbersome and expensive process.
In the case of Indian Citizens who are permanent residents in U.S, I am not sure if a will is executed in U.S by such a person involving property in India, whether it can be probated in India to be executed.
Any one who can throw light on this is most welcome.
(Courtesy: "lawyersclubindia.com")


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