Drafting Will and Trust: Understanding Indian Legal Requirements

The Transfer of Property Act of 1882 and the Indian Succession Act of 1925 both play a role in property-related matters. When someone cannot manage their property for any reason, they can transfer it to a capable person or a legal heir.

The main challenge in property transfer is choosing between a will and a trust. This choice depends on what’s best for the person transferring the property or the recipient. Transferring property through a will or trust is not overly complicated, but there are specific steps to follow for legally registering either a will or a trust deed.

Formalities for Drafting a Will

• Details of the testator –

Inclusion of detailed information about the transferor, such as name, age, address, and other identification details.

• Details of beneficiary –

Details of all the beneficiaries and specifications of how assets are to be divided.

• Declaration –

Under this head, the testator declares that he or she is of sound mind and is making this will out of any coercion and undue influence.

• Witnesses –

Whenever a will is drawn, it must be signed in front of two witnesses. Those witnesses must know the entire detail regarding the property and what is being agreed on between the parties.

• Details of property and asset –

Under this, all the little details read it to certain properties are mentioned by the testators and things that will be covered under the will.

What are the steps involved in Making and Executing Will?

• When executing a will, one must adhere to all the essentials that are mentioned in a will. Specific performance is the goal of execution of the will and must take care of it.

• As mentioned earlier, a will is a document that can be prepared without any format, but it is advisable to consult a family lawyer before drafting it. It can be dropped by the testator himself or with the help of your family lawyer.

• Before executing a will make sure all the signatures of testators, witnesses, and beneficiaries are present in it.

• It is in the goodwill of the testator and the beneficiary to make sure that the bill is registered. It helps people in making sure the legality of the will is maintained in the long run.

People Also Read: How to Make a Will Without a Lawyer?

Formalities for Forming a Trust Deed

• The minimum and maximum number of people required to frame a trust are 3 and 21.

• There should be the proper name given to a trust

• This needs to be decided for a trust

• All the objectives and aims of the trust should be mentioned in the written stamp paper.

• A trustee secretary and a treasurer must be decided beforehand.

Trust Formation Procedure

The procedure for forming a trust involves creating a memorandum of society with details like registered office, ancillary bodies, objectives, and government bodies. It also covers rules for trustees, including membership subscriptions, bank accounts, and fund management.

Conclusion

Resolving disputes and managing asset-related matters early is crucial. The primary goal of creating a will or trust is to ensure a smooth transfer of property ownership. The key difference lies in how the transfer is executed. In cases involving minors, guardianship becomes a significant factor. The guardian manages the property until the minor reaches legal adulthood.

Trusts are designed to streamline the estate transfer process, offering a more direct transfer method compared to wills, which must undergo probate. This makes trusts an appealing option for those looking to simplify asset distribution and minimize potential disputes among beneficiaries.

Ultimately, the decision to use a will or a trust depends on personal preferences and circumstances. Each individual must consider their unique situation and objectives. For instance, if minimizing future disputes is a priority, setting up a trust might be more effective than a will. The choice reflects one’s personal approach and the specific needs they wish to address in their estate planning.

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