Making a Will can seem daunting - not only do you have to think about a time when you won’t be around, but you also need to figure out how to fairly divide your estate among your loved ones, and trust that the people you have put in charge to carry out your wishes, will do so faithfully. This can be tricky, but it doesn’t have to be - especially if you have a close coterie of trusted friends and family around. Naming an Executor, Witnesses, and a Guardian becomes simpler when you appoint the right people for the right roles. We can help you make these (very important) decisions.

Choosing an Executor

One of the first decisions you take when you begin writing your Will is naming an Executor, ie the person who literally “executes” what’s outlined in the Will and carries out its instructions. Legally, an Executor can be:

• Any person over the age of 18 with a sound mind
• A company incorporated in India
• A Beneficiary under the Will

The role of an Executor is an important one, as the person you choose will be entrusted with a number of responsibilities, such as fulfilling all liabilities and dues of the Testator (the person making the Will), and coordinating any funeral-related duties.

While appointing your Executor, make sure this person is:

• Competent enough to understand the basic legal and administrative formalities required.
• Personable and gets along with others. They should be able to communicate well with the grieving family and keep them in the loop of their actions, with regard to the distribution of assets as per the Will.
• Conveniently located, preferably in the same city, so that they are available on the ground where the execution of the Will is to take place.
• Comfortable with taking on this responsibility. (Talking with them about it beforehand and obtaining their consent may be the best way to go about this.)
• Younger than you, so that they may survive you in order to take on this responsibility.

Expert tip: You may want to appoint a contingent or backup Executor, who can be called upon to fulfill these duties, in case your primary Executor is unwilling/unable to act, for any reason.

Selecting An Executor

Like most people, you may feel more comfortable appointing a close family member as your Executor - or you may not! If you don’t, you can always pick a professional or a lawyer. Just make sure that you choose this person wisely and with prudence. You can also appoint a Beneficiary in your Will as an Executor.

What happens if you don’t appoint an Executor?

If you don’t end up appointing an Executor to your Will, the court will appoint one for you. In such cases, the court appoints a person known as an administrator to administer your estate. This person is usually chosen from your immediate family or legal heirs. Please note, this may not be ideal. You know the dynamics that are at play when it comes to your family best, so it is always better to take this decision yourself.

Selecting Witnesses

If you’re creating a Will in India, you must have it signed by at least two (2) Witnesses in your presence. The thinking behind this is that the Witnesses can testify that you were of sound mind at the time of signing. While the Witnesses must see you sign the Will, it is not mandatory for them to see each other attesting the Will. Translation: They don’t have to be present at the same time.

While choosing your Witnesses, make sure they are:

• Reliable, honest, and truthful, so that they can testify in person and prove the authenticity of your Will if challenged in court.
• Above the age of 18 and of sound mind. It is advisable to choose two people who do not benefit either directly or indirectly from your Will. Remember, a Beneficiary CANNOT also be a Witness for your Will.‍
• Younger than you, so that they are more likely to survive you.

Expert tip: It is a common myth that a professional, such as a lawyer or chartered accountant, should witness the Will. However, this is not necessary. Any independent, trusted individual will suffice.

Appointing A Guardian

If you have a minor or differently abled child, it is crucial to appoint a Guardian. This ensures that your child/children are taken care of in your absence by someone happy and willing to fulfill this responsibility. Always discuss and obtain the consent of the person you intend to name as the Guardian. Under Indian law, the father is the natural Guardian of the child and, in the event of his absence or inability, the mother is the default Guardian. So, the role of Guardian appointed in the Will only comes into effect after the demise of both parents.

Now that you know how to select your Executor, Guardian, and Witnesses, it’s time to start your Will-creation journey!

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