Will Maker

A will is one of the most important legal documents a person can create, yet it is among the most neglected. In India, a study by a leading legal services platform in 2022 found that fewer than 3% of adults above 40 have a registered will. The result is that the majority of deaths in India lead to intestate succession — where the state, through applicable personal law, decides how assets are distributed, often in ways the deceased would not have chosen.

A will is a legal document through which a person (the Testator) expresses their wishes about how their assets should be distributed after death. It can also appoint a guardian for minor children, name an executor to carry out the will's instructions, and make specific bequests to charities or institutions. A will gives you control over decisions that would otherwise be made by law.

Indian Succession Law: Which Law Applies to You?

In India, succession law is personal — meaning it depends on your religion. This creates a complex legal landscape that a will can help navigate clearly.

Hindu Succession Act, 1956 (and Amendment 2005)

The Hindu Succession Act (HSA) applies to Hindus, Buddhists, Jains, and Sikhs. Under the HSA, if a Hindu dies without a will (intestate), assets are distributed first among Class I heirs (15 categories under the HSA 1956, post-2005 amendment) — including the widow, sons, daughters, mother, and the children/widows of any pre-deceased son or daughter, among others. The landmark 2005 amendment gave daughters equal coparcenary rights in ancestral Hindu Undivided Family (HUF) property — a change that has significant implications for property planning.

A will allows a Hindu to override the default HSA distribution and leave assets to specific individuals in specific proportions. This is particularly important in blended families, when there are multiple children from different marriages, or when the deceased wants to provide for a dependent who would not be a Class I heir under the HSA (such as a sibling, friend, or charitable institution).

Muslim Personal Law (Shariat Application Act, 1937)

Muslim succession in India is governed by personal law, which significantly restricts testamentary freedom. Under Islamic law, a Muslim can bequeath only up to one-third of their estate through a will (Wasiyat). The remaining two-thirds must pass to heirs according to the fixed shares prescribed by the Quran. Additionally, a Muslim cannot make a bequest in favor of a legal heir (unless the other heirs consent). A will is still useful for Muslims — for the one-third portion, for specifying which assets go to which heirs, and for appointing an executor — but it operates within these constraints.

Indian Succession Act, 1925 — Christians, Parsis, and Others

The Indian Succession Act (ISA) 1925 applies to Christians, Parsis, Jews, and those who do not fall under any personal law. The ISA gives broad testamentary freedom — a Christian or Parsi can, in principle, leave their entire estate to a stranger and disinherit their family entirely (subject to potential legal challenges in specific circumstances). For this reason, a clear, properly executed will is especially important for ISA-governed individuals to express their actual wishes.

The Difference Between Nomination and Bequeathing

A critical — and widely misunderstood — distinction in Indian financial planning is the difference between a nominee and a legal heir. Many people believe that nominating a person for their bank account, mutual fund, or insurance policy means that person inherits the asset. This is incorrect.

A nominee is a trustee, not an owner. The nominee receives the asset (e.g., the insurance payout, bank balance) on death and holds it in trust for the legal heirs. The legal heirs are determined by the applicable succession law — or by the will if one exists. If the nominee and the legal heir are the same person, there is no conflict. But if they differ, the legal heir can claim the asset from the nominee. A properly drafted will, combined with appropriate nominations, ensures consistency and prevents disputes.

For certain financial instruments, the position is different. EPF nominees do inherit (not just hold in trust). Insurance nominees similarly take the proceeds as their own under the Insurance Laws (Amendment) Act 2015, provided specific conditions are met. The law is complex and instrument-specific — which is another reason to have a will and get legal advice.

The Probate Process in India

Probate is the legal process of proving a will's validity in court and obtaining court authority for the executor to administer the estate. Under Section 57 of the Indian Succession Act 1925, the rules around probate apply specifically to Wills made by Hindus, Buddhists, Sikhs, and Jains (not Muslims, Christians, or Parsis) where the property bequeathed lies within the ordinary original civil jurisdiction of the Calcutta, Madras, or Bombay High Courts. For such Wills, probate is not strictly mandatory in every situation but is typically advisable, and is required before the executor can establish title to immovable property within those jurisdictions. In other states, probate is optional but often recommended for significant estates to prevent future disputes.

The probate process typically takes 6-18 months and involves filing the will with the District Court, publishing a notice in local newspapers, waiting for potential objectors, and the court issuing a grant of probate. The process is simpler if the will is properly drafted, witnessed, and — ideally — registered.

A registered will (registered at the Sub-Registrar's office under the Registration Act, 1908) is not mandatory in India but is strongly recommended. Registration makes it harder to dispute the will's authenticity and genuineness, and the original registered will is preserved in government records, eliminating the risk of loss or destruction.

When Can a Will Be Challenged?

A will can be challenged in court on the following grounds:

• Lack of testamentary capacity: The Testator did not have a sound mind (due to illness, dementia, intoxication, or minority) at the time of signing.
• Undue influence or fraud: The Testator was coerced, manipulated, or deceived into making the will.
• Improper execution: The will was not signed by the Testator and two witnesses as required by law.
• Forgery: The Testator's signature was forged.
• Suspicious circumstances: The will was drafted by a beneficiary who also had a dominant relationship with the Testator.

The best way to prevent a challenge is to have the will properly drafted by an advocate, signed by two independent and competent witnesses (not beneficiaries), witnessed by a doctor who certifies the Testator's sound mind if there is any health concern, and registered.

Digital Assets and Modern Wills

As more Indians accumulate significant digital assets — cryptocurrency holdings, domain names, digital content, online businesses, and cloud-stored digital files — the question of digital inheritance has become increasingly important. Indian succession law does not yet specifically address digital assets, but courts have generally held that digital assets form part of the estate and can be bequeathed.

If you have digital assets, your will should list them specifically (e.g., "my cryptocurrency portfolio held on [exchange name]"), and separately, you should maintain a secure, updated record of access credentials (seed phrases for crypto wallets, login credentials for accounts) in a format that your executor can access after your death. This is typically done through a secure password manager or a sealed physical document kept with the will. Never include wallet seed phrases or passwords in the will itself, as wills can become public documents during probate.

Joint Accounts and Joint Property

Joint bank accounts (with survivor rights) and jointly-owned property have specific succession implications that a will may not fully override. For bank accounts with "either or survivor" designation, the surviving account holder typically has the right to the full balance on the death of the other. A will cannot override this. For jointly-owned immovable property, the nature of the co-ownership (joint tenancy vs. tenancy in common) determines whether the deceased's share can be bequeathed independently. Hindu families may also have ancestral property governed by HUF rules, which operate separately from testamentary succession.

These complexities are precisely why a will — while essential — is most effective when created as part of a comprehensive estate plan that also addresses beneficiary nominations, joint ownership structures, and insurance arrangements.

LGBTQ+ Inheritance in India

Following the Supreme Court's decriminalization of Section 377 in 2018 and the ongoing debate around same-sex marriage (currently not legally recognized in India), LGBTQ+ individuals face unique estate planning challenges. Same-sex partners are not legal heirs under any personal succession law and therefore cannot inherit intestate. A will is the only legal mechanism through which LGBTQ+ individuals can ensure assets pass to their partner. Even with a will, challenges are possible from biological family members, making proper drafting, registration, and possibly a supporting letter or video testimony by the Testator particularly important.