Last Will Drafting

Last Will

A Last Will and Testament is a legal document that allows you (the testator) to describes how your money, property, belongings, and responsibilities will be distributed after your death. It also allows you to appoint a guardian for minor children and designate someone to manage your estate, settle debts, and ensure your wishes are fulfilled. 

It provides legal clarity, helps prevent disputes, and ensures that your estate is handled according to your intentions. 

When Should a Last Will be Used? 

After someone passes away, their Last Will comes into force. It’s basically their final say on how they want their money, property, and other belongings to be shared. The Will also takes care of things like appointing a guardian if they had minor kids or dependents to make sure everything happens just the way they intended. 

Example: A person writes a Will to leave their house to their sibling, their savings to a close friend, and names a guardian for their child. This avoids confusion, legal fights, and ensures their wishes are followed exactly.

How Does a Last Will Work? 

• Creation and Execution- The testator writes the Will, clearly stating how assets should be distributed, and signs it in the presence of two witnesses. 
• Storage and Activation- The signed Will is stored safely and becomes legally effective only after the testator’s death. 
• Probate and Executor’s Role- The Executor gets court approval (probate), collects assets, pays debts, and manages the estate. 
• Distribution and Closure- The Executor distributes the remaining assets to the named beneficiaries and closes the estate. 

Types of Wills in India

1. Simple Will - Use a simple will to list your assets and the beneficiaries who should receive them. You can also designate the executor and a guardian for any minor children. 

A simple will is one that can be done easily online using one of various templates. Be sure to get any legal advice, if you feel you need it. 

2. Joint Will - A joint will be one document that involves two people, generally spouses. When one dies, the will is executed in favor of the other spouse, as defined in the will. The provisions can't be changed by the surviving spouse, which can be a problem if that spouse's circumstances change. 

Joint wills aren't as common as they once were because of this inflexibility. 

3. Testamentary Trust Will - This will contain one or more testamentary trusts that take effect after your death and the probate process (unlike, for example, a living trust which takes effect during your lifetime). It is used in instances where beneficiaries, such as minor children and/or those with special needs, need specific care over a long period of time. The trust distributes all or a portion of your assets after you pass. 

Why do You Need a Last Will? 

• To decide who inherits your assets- It helps you control who gets what, instead of default legal heirs under succession laws. 
• To appoint a trusted Executor- Help ensures smooth administration of your estate after your death. 
• To protect minor children or dependents- Allows you to nominate guardians and provide for their care. 
• To avoid family disputes- Give clear instructions to reduce the chances of confusion, conflict, or litigation. 
• To ensure smooth business or property transfer- Helps prevent complications in handling your business or immovable assets. 
• To support specific individuals or causes- Enables gifts to friends, staff, or charities not covered by inheritance laws. 
• To express funeral and memorial wishes- Helps ensure your final rites are carried out as per your preferences. 
• To maintain control and peace of mind- Gives you confidence that your legacy will be handled as intended. 

Who Needs a Last Will?

• Parents and Caregivers- To appoint a guardian for minor children, dependent adults, or pets and ensure their care is handled by someone trusted. 
• Asset Holders- For anyone with property, bank accounts, investments, or digital assets can decide who gets what after their death. 
• Business Owners- To clearly pass on business ownership and avoid confusion or legal trouble among partners or heirs. 
• Unmarried or Joint Families- To make sure loved ones are included in the inheritance even if not covered under default legal rules. 
• Anyone with Specific Wishes- To give assets to chosen people, charities, or causes and prevent future family disputes.

Key Clauses of a Last Will

1. Parties Involved:

• Testator (Person who makes the Will): This refers to the individual who creates the Will. The testator clearly outlines how their assets should be distributed after their death and may also appoint key individuals, such as an executor or guardian, to carry out their wishes. 
• Executor (Person who executes the Will): The executor is the person named in the Will to ensure that the testator’s instructions are followed. They are responsible for handling the probate process, settling any outstanding debts, and distributing the estate to the beneficiaries.
• Alternate Executor: An alternate executor is appointed as a backup; in case the primary executor is unable or unwilling to take on the responsibility. 

2. Executor Appointment - This clause describes appointment of an Executor (and a backup in case the primary is unable or unwilling). The Executor is granted the right to manage the testator’s estate, carry out all instructions in the Will, and is entitled to reasonable compensation for their services.  

3. Duties and Powers of Executor - These powers allow the Executor to handle everything after someone’s death. They can pay debts, take care of expenses, and manage properties. Executors can also handle legal matters, hire experts, manage bank accounts, and look after investments or businesses. These powers help the Executor make decisions for the estate and its beneficiaries without being personally responsible, as long as they act honestly. 

4. Distribution of Assets - This section details how each asset class is to be distributed. It includes real estate, bank accounts, FDs, and insurance, investments, personal property, business interests. Fallback clauses ensure that if any beneficiary predeceases the testator, their share is redirected as per the testator's alternate instructions. 

5. Residuary Clause - This clause ensures that if anything is accidentally left out of the Will, or if there's anything left after everything else is given away, it will still go to the person the Will-maker wanted. It also says what should happen if someone named in the Will dies before the Will-maker, like passing their share to their children or another person. This helps prevent confusion and ensures the right people get the property. 

6. Wipeout Clause –In case, where all the people named in the Will (and their children) pass away before the person who made the Will, this clause says that the property should be given out according to the government’s default rules (called intestate laws).   

7. Guardianship - This lets the person making the Will choose someone to look after their minor children, dependents, or pets after they’re gone. It gives the chosen person full responsibility for their care, education, and well-being. The Will can also set aside money for their support, making sure vulnerable dependents are taken care of. 

8. Testamentary Trust - When a child inherits from a Will, a trust is set up to manage their assets until they are old enough (usually 18 or another age). The person in charge of the trust (often the Executor) can use the money for the child's health, education, and well-being. This makes sure the child’s inheritance is used responsibly and safely until they're mature enough to handle it. 

9. Powers of Trustee - This section grants wide-ranging authority to the trustee, such as investing trust assets, selling or mortgaging property, lending or borrowing money, and hiring professionals. The trustee may also make tax-related decisions or enter legal settlements. These powers make it easier to manage the trust efficiently, without needing frequent court approval. 

10. General Provisions - These provisions include clauses such as proportional reduction, no-contest clause and severability clause that ensures the will remains valid even if one clause is struck down. These protect the testator’s intentions and maintain the integrity of the Will. 

11. Governing Law - This states that the Will is to be interpreted and enforced according to the laws of a specified Indian state. It provides clarity on jurisdiction. 

12. Disposition of Remains - The testator can express their preference for burial, cremation, or other rites. It also allows for personalized funeral wishes. This ensures their final journey is conducted respectfully and as per their faith or personal values. 

13. Execution and Attestation - This section mandates the testator to sign the Will in front of two witnesses, who also sign to confirm the testator's mental clarity and free will. It also includes a declaration that witnesses are not beneficiaries. This gives the Will legal validity. 

14. Doctor’s Certificate (Optional) - Included for added legal strength, especially if the testator is elderly or ill. It confirms they were mentally fit when signing the Will, which helps prevent future challenges. 

What Should be Included in Last Will? 

1. Testator Details - Let’s start with the basics. The Will should clearly mention your full name and include valid identity proof like your Aadhaar card. It's also important to state that you're of a sound mind and making this Will voluntarily, without any pressure from anyone. 

2. Executor Appointment - You should choose a trusted person to make sure your wishes in the Will are followed. This person is called the executor. It’s a good idea to name a second person as a backup, in case the first one isn’t available. You can also mention if the executor should be paid for their time and effort. 

3. Beneficiaries List - This is where you list who gets parts of your property. It includes their full names, how they’re related to you, and what share of your estate they should receive. 

4. Specific Bequests (gifting a particular item or amount to someone in your Will) 

If you have assets to give to specific people, write them out here 

• Real estate (houses, land) 
• Bank accounts and fixed deposits (FDs) 
• Insurance policies 
• Investments (DEMAT accounts, mutual funds, ESOPs, bonds) 
• Personal items (vehicles, jewellery, gadgets, digital assets) 
• Business ownership or partnerships 

5. Residuary Clause - These handles everything you haven’t specifically mentioned elsewhere. It also covers what should happen if any of your chosen beneficiaries pass away before you. 

6. Guardianship - If you have minor kids or dependents (including pets), this is where you name someone to care for them in case your spouse isn’t around. 

7. Testamentary Trusts - If your beneficiaries are minors, you can create trust in your Will. It allows a trusted person (trustee) to manage their inheritance until they reach a certain age. 

8. Executor Powers - Your executor needs some authority to act. This clause gives them the power to pay bills, deal with property, settle any outstanding debts, and ensure all legal formalities are taken care of. 

9. Trustee Powers - Similarly, your trustee (if you’ve set up a trust) gets the authority to manage the trust. This includes investing assets, handling money, even hiring experts like lawyers or accountants if needed. 

10. Revocation Clause - To keep things clean and legally clear, this clause simply says that any previous Will should be cancelled and the codicil (legal document used to make changes to an existing Will without rewriting the whole Will) will be updated to avoids any confusion later. 

11. No-Contest Clause - This is like a warning: if anyone tries to challenge your Will in court, they lose their share. It helps discourage unnecessary disputes. 

12. Funeral Wishes - You can also include your preferences for how you want your final rites to be handled whether you prefer cremation or burial, and any specific customs you want followed. 

13. Governing Law - This part mentions which state’s laws should be used to interpret and enforce your Will. Useful if you have assets or family are at different places. 

14. Execution Formalities - Lastly, to make your Will legally valid, you need to sign it in front of two witnesses. For added assurance, the testator needs to include a certificate from a doctor confirming their mental soundness at the time of signing. 

How to Make a Last Will? 

• Visit our Website - Go to digilawyer.ai 
• Select the AI Drafting Option - On the left-hand side of the homepage, click on "AI Drafting." 
• Choose the Will Section - From the list of document categories, select “Will”. 
• Pick the Type of Will - Choose “Last Will” as the type of will you want to create. 
• Fill in the Required Details - Enter all the necessary personal, assets details, and preference-based information as prompted by the platform. 
• Generate Your Personalized Last Will - The system will create a customized Last Will document based on your inputs. 
• Get It Notarized and Delivered - You can opt for notarization services and have the finalized will delivered right to your doorstep.

Documents Needed for a Last Will

1. Proof of Identity for the parties 
2. Address Proof for the parties 
3. Mental fitness certificate from the doctor while making the Will (Optional) 
4. Proof of Assets (as applicable) like Property documents (sale deed, title deed), Fixed deposit certificates, Insurance policy documents, Business registration papers, etc. 

Know the Law

The laws that impact the last will in India are:

Impact of Not Following the Clauses 

• Legal Disputes - Heirs may contest the will in court, leading to delay (from 6 months to 5 years depending upon whether the will is contested or not) and battles to prove its validity. 
• Will May Be Declared Invalid - If fraud, coercion, or forgery is proven, the will can be canceled. 
• Executor Liability - Executors can be removed or sued for mismanagement or dishonesty. 
• Criminal Charges - Forgery or tampering can lead to imprisonment under BNS Sections 338 & 340(2). 
• Financial Penalties - Wrongdoers may have to return assets or compensate rightful heirs. 
• Delayed Distribution - Breach causes probate delays, legal costs, and emotional stress. 

Why Choose DigiLawyer to Draft Your Last Will?

At DigiLawyer, we make creating your Last Will simple, secure, and legally valid. Our legal experts ensure your Will is properly drafted as per Indian succession laws, giving you peace of mind that your wishes will be respected. With an easy online process, fair pricing, and expert guidance, we help you protect your loved ones and your legacy. 

What Makes Us the Best Choice? 

• Legally Compliant Wills – Drafted by legal experts, following Indian succession laws. 
• Quick & Hassle-Free Process – Create your Will online with just a few simple steps. 
• Personalized Wills – Include custom clauses to suit your specific wishes and family needs. 
• Affordable & Transparent Pricing – No hidden charges, just fair and clear pricing. 
• Secure Online Storage – Safely access your Will anytime, anywhere. 
• Expert Legal Support – Our team is available to answer your queries and guide you through the process. 
• Privacy Guaranteed – Your personal and financial details remain confidential. 

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