Index

1. What Is A Will? 
2. Which Laws Govern Registration Of A Will? 
3. Which Documents Are Required For Registration Of A Will After Death?
4. What Are The Steps For Registering A Will After Death? 
5. What Happens If A Will Has Not Been Registered Prior The Testator’s Death? 
6. What Are The Benefits Of Registering A Will After The Death Of A Testator?
7. What Are The Steps To Register A Will Online?

What Is A Will? 

A will, also known as a last will and testament, is a legal document that outlines how an individual desires their belongings and assets to be distributed after their death. It serves as a clear statement of intentions and a comprehensive inventory of all assets. Drafting a will guarantees a smooth transfer of assets to family and friends, avoiding delays and complications. It also provides protection for dependent family members, including minor children.

Which Laws Govern Registration Of A Will? 

In India, the laws governing will registration and succession are primarily covered by the Indian Succession Act, 1925 (ISA) and the Registration Act, 1908.

Indian Succession Act, 1925

1. Definition of a Will: A will is a legal declaration of the intention of the testator (the person making the will) with respect to their property to be carried into effect after their death.
2. Eligibility to Write a Will: Any adult of sound mind can write a will. The testator must be capable of understanding the nature of the will and their property.
3. Registration of a Will: Registration of a will is not mandatory, but it provides definitive legal backing in case of disputes. The court has ruled that a will, properly signed and expressing the testator’s wishes, is legally valid even if not registered.
4. Codicils: A codicil is an instrument made in relation to a will, explaining, altering, or adding to its dispositions. It is deemed part of the will.

Registration Act, 1908

1. Registration Process: Documents, including wills, must be registered within four months of their execution. However, wills have more flexibility and can be registered at any time due to their delicate nature.
2. Special Cases: In special cases, such as ill health or impending death, the registration process can be conducted at the testator’s residence.

Practical Considerations

1. Stamp Duty: Wills do not attract stamp duty under the Indian Stamp Act or certain State Stamp Acts.
2. Validity of a Will: A registered will is not sufficient to dispel all suspicion regarding its validity without submitting evidence of registration to close examination.

Which Documents Are Required For Registration Of A Will After Death? 

The key documents required for will registration in India are:

1. Two passport-size photographs of the testator (the person making the will) 
2. A medical certificate from an MBBS/MD doctor verifying that the testator is of sound mind and capable of making decisions 
3. The original, signed copy of the will 
4. Two attesting witnesses who must be present during registration, and provide their own photo IDs 
5. ID proof (such as PAN card) of the testator and the two witnesses 
6. Residential address proof of the testator 

What Are The Steps For Registering A Will After Death? 

The key steps for registering a will after the death of the testator (the person who made the will) are:

1. Locate the original copy of the deceased’s will. This should be the final and complete version of the will.
2. Gather the necessary documents
3. Visit the local sub-registrar’s office in the jurisdiction where the testator resided or where most of their property is located.
4. The registrar will carefully examine the will for legal accuracy before registering it.
5. Pay the required registration fee, which may vary by state.
6. The testator and two witnesses must be present at the sub-registrar’s office for the registration process.
7. After completing the registration, the testator or their representative will receive a copy of the registered will as official documentation.

What Happens If A Will Has Not Been Registered Prior The Testator’s Death? 

If a will is not registered before the testator’s death, it is still legally valid in India, as registration of a will is optional. However, there are some important considerations:

1. An unregistered will has slightly weaker evidentiary value compared to a registered will in court. The burden of proof lies on the party proposing the unregistered will.
2. Unregistered wills can be more easily challenged by family members or beneficiaries if there are disputes. Registration provides more legal protection.
3. The responsibility of safekeeping an unregistered will lies with the testator. If it is lost, damaged or tampered with, it can cause issues.
4. Even after the testator’s death, an unregistered will can still be registered later by the claimants. They need to produce the will, death certificate and witnesses before the sub-registrar.
5. If the executor or heir does not want to register the unregistered will, they can approach the court to obtain letters of administration to administer the estate

What Are The Benefits Of Registering A Will After The Death Of A Testator? 

Registering a will is not mandatory in India, although registering a will offer numerous benefits such as :

1. A registered will is legally enforceable and considered a public record, ensuring its authenticity in legal disputes.
2. Registration clarifies the testator’s wishes, reducing ambiguity and ensuring fair asset distribution.
3. It ensures that assets are distributed according to the testator’s wishes, protecting them from being distributed according to intestate succession laws.
4. Registration reduces the likelihood of disputes among heirs, as the document’s authenticity is established.
5. Knowing that assets will be distributed as intended provides peace of mind to the testator and their loved ones.
6. The process is streamlined, eliminating lengthy court proceedings and reducing the emotional and financial burden on heirs.
7. Registration ensures that the will remains confidential until the testator’s death, maintaining privacy and dignity.
8. The original will is kept in safe custody by the Registrar, minimising the risk of loss, damage, or tampering.
9. In case of destruction, a certified copy is available, ensuring continuity and security.
10. It encourages individuals to plan their succession during their lifetime, ensuring their wishes are carried out after death.

What Are The Steps To Register A Will Online? 

To register a will online after the death of the testator, follow these steps:

1. The executor of the will should visit the sub-registrar’s office in the testator’s residential area or where most of their property is situated.
2. Ensure the will is signed by the testator in the presence of two witnesses. The will should be drafted by a legal professional and include all necessary details such as personal information, assets, beneficiaries, and executor details.
3. Gather required documents
4. The executor afterwards should schedule an appointment with the sub-registrar’s office to register the will.
5. The executor must pay a nominal fee for the registration of the will.
6. The executor must arrange for two witnesses to accompany them to the sub-registrar’s office during the registration process.
7. After completing the registration process, the executor receives a copy of the registered will, which serves as an official acknowledgement.
8. The executor can file the registered will in court along with all required documents. The court then sends notices to all legal heirs of the deceased testator