Can I appoint an executor to a Will myself

The Private Client team at Cyril Amarchand Mangaldas shares their comments and opinions in an article in the  following Q&A which was published by the Mint Newspaper on 3rd January, 2022 and the online edition of the same can be found here.

I would like to have a legal Will draft format. I want to know if I can register a Will and appoint an executor by myself or do I need a lawyer for the same?

—Name withheld on request

It is advisable that you appoint a legal counsel to assist you with the drafting and execution of the Will. As each individual’s and family’s circumstances are different, an experienced attorney would be well placed to guide you on making a robust Will.

If you prefer making your Will directly by yourself, you can use one of the many online Will service providers.

You can appoint any trusted individual as your executor under your Will. We recommend at least two backups are named, in case your first choice executor is not available for any reason. Registration of a Will is not mandatory under Indian law. However, a registered Will implies that the registrar has verified the author of the Will and the witnesses by attesting it. It is recommended that you speak to your lawyer vis-à-vis registration of a Will and on circumstances when you should consider registering it.

My father passed away intestate and has not mentioned my mom as a nominee on his bank accounts and stock accounts. We approached the bank and they informed us that they would need a probate certificate. However, I am confused given that my dad passed away intestate and thus a probate certificate is not applicable. Can you please suggest how we can go about withdrawing funds?

We have assumed that you are Hindu by faith. Accordingly, the provisions of Hindu Succession Act, 1956 (HSA) will apply for intestate succession. Please note a probate is a final decree passed by a court declaring the legality/correctness and genuineness of a Will of the deceased.

However, probate is compulsory only in certain circumstances, e.g. in case of property falling under the ordinary original civil jurisdiction of high courts situated in Mumbai, Chennai, Kolkata; or if the Will was signed in such jurisdictions. In other parts of India, obtaining a probate of a Will is not mandatory.

In case the deceased did not make a Will and died intestate, then another procedure called grant of letters of administration would be applicable, which is similar in scope to a probate.