Have you ever wondered what happens when you are no more? A Will Deed is an instrument by which one can encompass the directions he or she wishes to be followed at the time of death, with those directions being for the protection of the family of the testator/appointer. It is an easy-to-understand, potent legal creation which ensures clarity, averts disputes, and gives the testator peace of mind. In this blog, we aim to acquaint you with what a will deed is, its importance, and tips on effectively drafting and registering one.
What is a Will Deed?
A will deed or a will is a legal document through which a person (a testator) states the distribution of the property after his/her death. It is a testamentary document and is invalid unless the testator passes away. When the testator is alive, the legal documents with immediate effect become void. This is because the testator may change their mind, as there is no bar to revocation, at any time while they are alive.
Features of a Will Deed
- Testamentary Nature: Landing only after the death of the testator.
- Revocability: The testator may amend or revoke the will at any time during his or her life.
- Appointment of Executor: A will may provide for an executor who is to see to the implementation of the will furthering the instructions of the testator.
- Witnesses: The will has to be signed in the presence of two or more witnesses who are not the beneficiaries.
- Registration: The will can be registered under the Indian Registration Act, 1908, but it is not compulsory. Registration adds to the will’s credibility and prevents or reduces disputes.
Benefits of a Will Deed
- Right Asset Distribution: The will specifies exactly what and how much share should be distributed between each person to prevent confusion and quarrels between heirs.
- Protection for Minor Children: It helps designate a guardian to take care of your children, naming a person you trust, rather than leaving it to the courts.
- Choose an Executor: You also have the option to name someone to whom you entrust the management of your estate, the payment of debts, and the distribution of assets per your wishes.
- Fewer Family Conflicts: A will clearly stating your wishes can greatly reduce family disputes.
- Support for Loved Ones and Causes: You may wish for particular gifts or support to be provided to family, friends, or a charitable organisation important to you.
- Flexibility and Control: Whenever you see a change in circumstance or desire, you can make amendments to your will.
- Avoiding Default State Laws: In the absence of a will, the state will determine who inherits your estate. A will assures that your wishes are to be followed.
- Potential Tax Advantages: Depending on circumstances, it may be possible to reduce your tax liability through the thoughtful planning of a will.
Types of Will Deeds
Privileged Will
The privileged will is specifically made for people in special occupations, such as armed forces personnel or sailors and airmen engaged in warfare or emergency conditions. Owing to their special circumstances, these wills may be made partly orally or with fewer formalities than those required for a normal will. It recognises the urgency and danger involved in the discharge of their duties.
Unprivileged Will
This is an ordinary will intended for the use of other citizens. By the law of wills, they must be in writing, signed by the testator, and attested by at least two witnesses. The testimony is to ensure their legal validity and clarity under ordinary circumstances.
Joint Will
A joint will is executed by two or more persons, usually spouses, on one document for the joint disposition of their property. It embodies a reciprocal arrangement between the testators but becomes binding only after the death of both, because between them, one can revoke it.
Mutual Will
Mutual wills are separate but interrelated wills made by two persons, usually spouses, who agree to leave their property to each other or a common beneficiary. The key feature is that there is a legal agreement that the wills shall not be changed without mutual agreement after the death of one of the parties.
Living Will
A living will does not deal with the disposition of assets. Rather, it states a person’s wishes regarding medical treatment should they become terminally ill or incapacitated. This, therefore, acts as an advance healthcare directive and is mostly applicable to making arrangements for end-of-life care.
Step-by-Step Will Deed Registration Process
Draft the Will
Draft a clear and detailed document that sets forth your instructions on asset distribution, the appointment of an executor, and guardianship of any minors. Include in the will particulars such as your identity, the beneficiaries, and the disposition of assets.
Consult a Legal Expert
Have a lawyer go over your will. Make sure he or she ensures that it is legally enforceable, contains all of the required elements, and minimises possible challenges.
Visit the Sub-Registrar’s Office
Take the will to the office of the local sub-registrar. This government authority is responsible for the registration of wills. You may need to fill up some prescribed forms or declarations before submission.
Arrange for Witnesses
There should be at least two adult witnesses who are not beneficiaries present at the time of signing of the will. Their role is to ascertain that the testator has signed willingly, of their own volition, and in full mental capacity. In some jurisdictions, it may also need to be notarized.
Submit and Register the Will
Present the original will duly signed and witnessed to the registrar together with identification documents, and the prescribed registration fee. The registrar will check both the identities and the Will before recording the Will officially.
Obtain a Certified Copy
After registration, you shall be given an official, certified copy of the Will. This document should be safely stored, preferably in a fireproof location, or held by a trusted individual or legal advisor.
Inform Key Individuals
The appointed executor and close family members should be advised on the existence and place of storage of the registered Will to enable easy access and quick processing of the Will whenever needed.
Documents Required for Will Deed
- The original will deed signed by the testator and attested by two witnesses.
- Identification proof of the testator
- Aadhar Proof
- Passprot
- Voter ID
- Address proof of the testator
- Identification and address proof of the two witnesses
- Property documents, if the property is immovable.
Difference between a Will Deed and a Gift Deed
| Feature | Will Deed | Gift Deed |
| Timing of Transfer | Transfer of property takes effect only after the death of the testator. | Transfer of ownership in a Gift Deed is immediate and takes place during the lifetime of the donor. |
| Consideration | No consideration is required. It is a gratuitous transfer taking effect upon death. | Must be made without consideration; a transfer for a price is a sale, not a gift. |
| Revocability | Can be revoked or altered by the testator at any time during their lifetime, provided they are of sound mind. | Once a gift is complete, it is generally irrevocable by the donor, except under specific circumstances like fraud or undue influence. |
| Stamp Duty & Registration | Registration is optional, and there is no stamp duty on the registration of a Will. | Registration is mandatory for immovable property, and stamp duty is payable based on the value of the property and state-specific rates. |
| Acceptance | Acceptance by the beneficiary is implied after the testator’s death. | Requires acceptance by the donee during the lifetime of the donor for the gift to be valid. |
Conclusion
A will deed is a responsible and thoughtful act toward the security of one’s lineage and the acquisition of protection for their loved ones. Distribution thereby stands fully recognised as per one’s will; disputes over legal matters can be reduced; and those beneficiaries are thus clearly known. One is never sure whether lawyers would record the will or keep it: having a Will is, therefore, in itself, a measure of peace of mind. Don’t put your most precious matters aside for the future; now is a good moment to secure them.