Secure Your Legacy: Why Registering Your Will Matters

By Shantam Sharma and Ritvik Kashyap

Introduction

In India, a Will is a formal document that specifies how a person wants their assets to be distributed after their death. While creating a Will is a crucial step in estate planning, the question of whether it needs to be registered often arises. A Will, when properly executed, ensures a smooth and hassle-free transfer of assets to the designated beneficiaries. However, the process of registering a Will in India is often misunderstood, leading to confusion and uncertainty among individuals.

This article addresses the common confusion surrounding whether a Will needs to be registered or not, the process of registration of a Will, advantages of registering a Will and consequences of non-registration.

Benefits of Registering a Will

Although, there is no legal requirement to register a will [1], however, registering a Will with the appropriate authorities brings a range of benefits, offering both security and peace of mind for the Testator and their Beneficiaries. Key advantages are as follows:

1. Assurance of Authenticity:By registering your Will with the local sub-registrar, its authenticity is confirmed, minimizing any concerns about potential coercion or fraud. The process creates an official record of the Will’s existence, date, and your identity as the Testator, which adds legal weight to the document, making it more credible than an unregistered one.
2. Safe Custody:A registered Will is protected from risks like loss, theft, destruction, or tampering. The official copy maintained by the authorities serves as a secure, backup version, ensuring the Will is not easily altered or misplaced.
3. Restricted Access:Despite being officially recorded, registering your Will does not make it a public document. You can maintain privacy, as only the testator and beneficiaries have access to it. Additionally, if the original Will is lost or destroyed, the executor or beneficiaries can obtain a copy from the sub-registrar’s office, following the necessary formalities and payment of a fee.

Consequences of not registering a Will

1. Potential Disputes Among Heirs:Without a registered Will, the distribution of assets becomes a matter of interpretation. Family members may dispute the intent of the deceased, leading to lengthy legal battles over the rightful heirs and division of property.
2. Intestate Succession:If a Will is not registered or not made, the deceased’s estate will be distributed according to the laws of intestate succession. This typically means that the estate will be divided among the legal heirs (spouse, children, etc.) according to a set formula, which may not align with the deceased’s wishes.
3. Delay in Estate Settlement:Unregistered Wills can lead to significant delays in the settlement of the estate. Without clear instructions, the process of determining heirs and asset distribution can be complicated and time-consuming.
4. Probate Issues:Even if the Will is not registered, it can still be presented for probate in court, but the court may face challenges in verifying the authenticity of an unregistered Will. This could lead to further delays, and in some cases, the Will may be disputed or invalidated.

Procedure for registration of a Will

The registration of Will is more flexible compared to other documents under the Registration Act, 1908. While other documents must be registered within four months of their execution, Wills can be registered at any time.

1. Choosing the Sub-Registrar:To register a will, you must choose the Sub-Registrar or Registrar of the district court where the majority of the properties are situated. The registration process is typically conducted at the offices of these authorities. Typically, the registration process takes place in the offices of the Registrar or Sub-Registrar. However, Section 31 of the Registration Act, 1908 [2] provides an exception for special circumstances:
   a. This section allows the officer to visit the residence of the individual for registration if a valid reason is presented, such as illness, imminent death, or similar situations.
   b. The Registrar is responsible for carefully reviewing the will to ensure its legal accuracy before completing the registration process.
2. Payment of Registration Fee: The testator must pay a registration fee to the state government. The exact fee varies by state and must be paid by the testator.
3. Delay in Estate Settlement:Unregistered Wills can lead to significant delays in the settlement of the estate. Without clear instructions, the process of determining heirs and asset distribution can be complicated and time-consuming.
4. Witness Presence: The testator must bring two witnesses to the Sub-Registrar’s office during the registration process. These witnesses verify the authenticity of the registration.
5. Receipt of Registered Will:After registration, the testator or their authorized representative receives a copy of the registered will, usually within a week or more.
6. Safe Custody of the Will:If the testator deposits the will with the Registrar, it must be sealed. The Registrar verifies the depositor’s identity and holds the sealed will.
7. Changes or Withdrawal:To make changes or withdraw the will, the testator or their authorized agent must apply to the Registrar. The Registrar will return the will after necessary verification.
8. Opening the Will after Death:After the testator’s death, anyone can apply to the Registrar to open the sealed will. The Registrar opens it in the applicant’s presence and provides a copy. The original will remains with the Registrar until a court order is issued.

Conclusion

In conclusion, while it is not mandatory to register a Will in India, the process of registration offers significant advantages that can help ensure a smoother transfer of assets and reduce potential disputes. The Indian legal framework, particularly the Registration Act, 1908, clarifies that Wills fall under the category of documents for which registration is optional, as per Section 18(e). The Indian judiciary has consistently upheld that an unregistered Will, when properly executed and witnessed according to the Indian Succession Act, 1925, remains legally valid and enforceable. However, registering a Will provides added assurance regarding its authenticity and protects it from future disputes.

[1] Section 17 of the Registration Act, 1908. Documents of which registration is compulsory, available at: https://www.indiacode.nic.in/show-data?abv=CEN&statehandle=123456789/1362&actid=AC_CEN_18_43_00004_190816_1523340837338&sectionId=37616&sectionno=17&orderno=18&orgactid=AC_CEN_18_43_00004_190816_1523340837338

[2] Registration or acceptance for deposit at private residence, available at: https://www.indiacode.nic.in/show-data?abv=CEN&statehandle=123456789/1362&actid=AC_CEN_18_43_00004_190816_1523340837338&sectionId=37631&sectionno=31&orderno=33&orgactid=AC_CEN_18_43_00004_190816_1523340837338