Writing your will can save your loved ones from legal and financial wrangles by making the inheritance process smooth after your demise.
By Mimi Partha Sarathy
When Renuka (name changed) lost her husband, she and her young daughter had to grapple with more than just the emotional trauma. Renuka's husband had not left a Will. With other family members staking claim to the deceased’s property, legal wrangles compounded her misery. Presence of a Will would have ensured certainty and definiteness in not merely determining entitlement but also in the location and identification of the assets.
A Will is a vital document. It ensures that one's loved ones inherit what is rightfully theirs. It is a misconception that the property is automatically passed on to the spouse, given children and, at times, even relatives stake a claim to it. The rules for writing a will are determined by the Indian Succession Act.
When you draft your Will, make sure it is complete and specific. A Will usually starts with a declaration by the maker stating that it is being drafted of his/her own volition, in the right mental state and without pressure. You need to include your full name, your age and residential address. Then, make a list of all your assets—real estate, bank accounts and fixed deposits, postal investments, mutual funds, share certificates, etc. specifying where these documents are kept. Write the Will clearly and do not use jargon. You must also mention who should own these assets and in what proportion. Likewise, if you nominate a minor as a beneficiary, you must appoint a custodian for your assets till the minor becomes an adult. If you have many assets or if you frequently keep churning your assets, ensure that you have clearly mentioned a nominee or a second / joint holder for each of your investments. You can make a statement in the Will that all your movable and immovable assets are bequeathed to the nominee or the second/joint holder of the asset.
If the person dies without having made a Will—intestate—then his/her assets will be divided as per the applicable Succession Act or personal law. Normally, a nominee or a second / joint holder of an asset is only a trustee /caretaker of the asset and, in the absence of a Will, he will have to distribute the asset in accordance with one's personal law. A Will, however, will specify to whom the assets will be bequeathed.
You must sign the Will in the presence of at least two independent witnesses, people you trust and those expected to outlive you, ideally, a family doctor and a lawyer. The witnesses too have to sign the Will, certifying that you have made the Will in their presence. The date and place must be indicated clearly at the bottom of the Will. Make sure you and the witnesses sign all the pages of the Will. You must ensure that witnesses aren't beneficiaries. After completing all the formalities, the Will must be kept in a safe place. You may put it in an envelope and seal it. The seal must bear your signature and the date. You can change your Will any time you want to. However, when you make a new Will, you must mention that it is the latest Will and supersedes all earlier Wills. Even though registering a Will is not compulsory, if you expect succession disputes, it is recommended you register the Will at the nearest sub-registrar's office. After your demise, an executor will be responsible for dividing your wealth among the beneficiaries.
It is advisable to make your spouse the executor; if this is not possible, then your children can execute the Will. In case you expect disputes, then a neutral party can also be made the executor to ensure proper distribution of the assets to the beneficiaries.
Today, it has become very difficult to transfer assets, especially immovable assets such as real estate, upon the demise of the owner. You require a succession certificate, which can be obtained only after a proper process of identifying the final legal heir to the assets. It is much simpler to obtain probate, if there is a Will. So, make sure you complete the last leg of your financial planning, succession planning, and do it right.
(The author is Founder and Managing Director, Sinhasi Consultants)
