23 Jul 2019, 16:30 — 11 min read
Background: A ‘will’ is a legal declaration by a person stating how their assets must be distributed after their demise. Many people avoid writing a will because they believe it is time-consuming, costly or they simply avoid contemplating their own death. Rishabh Adukia explains how and why to create a will.
Human life is capable of creating its own destiny. Each walks their own path of success and works hard to create a comfortable life for themselves and their loved ones. The basic necessities of life like food, water and shelter are the ultimate aim of every individual. They feel secure with the money that they earn. Every individual acquires some wealth during their lifetime. An average individual has certain savings which they might wish to pass on to the next generation.
As humans we work hard to create assets and wealth. However, death is the most certain event of any human’s life. It is this certainty that you need to consider, to realise what will happen to your loved ones after your death. You must plan for smooth transition of the wealth that you have created to be passed on to future generations. Thus a ‘will’ becomes an important document every individual must make.
A will is essential for every individual who has some wealth that s/he can leave behind for their successors.
What is a will?
In simple terms, a will is the wish of the person making it, with respect to the property that s/he has acquired during their lifetime. It brings out the wish of the writer as to who and how will their property be distributed.
Need to write a will
Although a very important document, very few individuals actually write a will. The reason for not writing a will could be that one does not address mortality. The other could be that it seems too early to write a will or it could be the notion that a will is only for rich people who have a lot of property and wealth. But the reality is that a will is essential for every individual who has some wealth that s/he can leave behind for their successors. There is no right time for making a will. It can be written as soon as one owns an immovable property. In case of bank deposits, the purpose is achieved by making nominations.
Moreover, a will is an evolving document, which means it can be changed whenever one wishes to make updates. One may add a property or gain more shares or may want to allocate some fixed amount for a specific use in their will. One may change a will when there is an addition to the family, like when you get married or when a child is born. This makes it possible for an individual to write a will early in life and not postpone it to the later stages of life.
The most important reason to write a will is that it gives the executor complete control on how their assets would be distributed after their death. Here the executor may distribute their assets proportionately or disproportionately. The executor may decide to give away their entire property to only one heir, leaving out the rest or may even decide to distribute to any institute or organisation for the general benefit of society. It will be completely as wished by the creator.
Also read: Key elements of a non-disclosure agreement
What happens if there is no will?
In the absence of a will, the property of the deceased is passed on their heirs as per the Hindu Succession Act 1956 or the Muslim succession Act or the Indian succession Act 1925, depending upon the religion followed by the deceased. The Hindu Succession Act 1956 which is applicable to Hindus, Buddhists, Jains and Sikhs divides the property into different classes as mentioned in the schedule appended to the act. Section 10,11 and 12 of the Hindu Succession Act 1956, elucidates the way property is distributed between the heirs in different classes.
The effect is that without a will, you will have no power over who inherits your assets. For example, suppose you wanted your minor daughter to have INR 1 crore for higher studies. Not leaving a will means this amount may be distributed among, say, five legal heirs, and she will end up with only INR 20 lakh. A will enables a person to decide which asset goes to which heir and in what proportion.
How to write a will
A will can be drafted wholly on your own or through a lawyer. Also, a will can be made at any time during a person’s life. The will may be written on a plain paper giving out all the personal details like name, address, place and date. Enter the full name of the person who is to receive a particular property giving the detailed description of the property and state your relationship with the person who is to receive the property. The will should be signed and witnessed by two persons.
The other most important part of the will is the declaration to be made—that you are revoking all earlier wills, that you are of sound mind, and that you are not making the will under any undue pressure. If a person is very old, it is better to attach a doctor’s certificate certifying one’s mental health and sanity.
Registering a will
A will may be either registered or unregistered. A registered will is one where the will is registered at the sub-registrar’s or the registrar’s office of the district court under whose jurisdiction a major part of property lies.
Registration of a will does not have any particular sanctity. It can also be challenged in a court of law. However, a registered will carries a sense of authenticity since it is approved by a government official.
Advantage of registering a will
Often soundness of mind, forged signatures and coercion are the grounds on which a will is challenged in the courts of law. With registration of will by a personal visit to the registrar, the authenticity of will is established. Hence the possibilities of contesting the will on these grounds are minimised.
Points to remember while writing a will
Although a will is a simple document, writing it in the most precise manner is key.
Following are the points to be kept in mind while writing a will:
1. Be specific and detailed
The will should set out all the details regarding the moveable and immovable properties of the executor of the will. Give out every detail of the property with descriptions. Provide name of the person whom you want to inherit a particular property, include their address and your relationship with them.
Mention every bank account, with the number, bank name and address. Also mention where you have safe deposit lockers, their key numbers, nominees as to who can operate the locker after the demise of the primary locker holder. Similarly, for investments and insurance, list the scheme name, number, financial institution, and insurer, along with the addresses. For more than one property, distinguish each one clearly by listing dates of purchase, addresses and taxes paid.
2. Appointing the right executor
An executor is a legal representative of the person who has made a will. S/he is responsible for distributing the assets of the deceased person in accordance with the wishes of the deceased as enumerated in the will. Therefore, it is important to decide whom do you appoint as the executor of the will. It is prudent to appoint someone younger as executor of the will. An executor can be either your relative, friend or even a third-party executor.
3. Appointing guardian for minors
Where you intend to pass on your property to your minor children, you must appoint a guardian for them in your will. The guardian shall act as caretaker of the assets till the minor becomes an adult. If no guardian has been appointed, and the owner’s signature is required to sell, finance or conduct other business transactions, the court typically gets involved to protect the child’s interests.
Anybody whom you trust can be appointed as the guardian of the minor children. A parent can easily nominate the other parent as a guardian in case s/he passes away. Grandparents or other close relatives can also be appointed as guardians.
4. Updating the will
As mentioned earlier will can be written at any time. Considering the uncertainty of life, the earlier a will is written the better. Having said that the will cannot remain stagnant. With changes in life, the will also should undergo a change. An addition in the family because of marriage or birth of child, the will should be altered. Also, one accumulates wealth throughout life. Any addition to property or investments should be included in the will as soon as they are acquired or are made.
5. Plan for yourself before planning for others
Plan for your life, health and illness before thinking of distributing your assets to your heirs. Most people do not account for terminal illness in their wills. Were you to suffer from a terminal illness, disability, or go into a coma, it will not only impact your finances but also that of your loved ones. Although this can be taken care of by having a basic health insurance and a critical illness, it is equally essential to make certain provisions in your will.
Mention clearly who will take charge of your estate and financial affairs, as well as conduct day-to-day transactions. Appoint someone to take healthcare decisions for you in case you are not in a position to do so yourself.
Writing a living will
In a landmark judgment, the Supreme Court recognised that a terminally ill patient or a person in a persistent vegetative state has the right to die with dignity. To do this, the person will have to execute what is called a ‘living will’. The judgment has recognised the right to die with dignity as a fundamental right.
A living will, also called a directive to physicians or advance directive, is a document that lets people state their wishes for end-of-life medical care, in case they become unable to communicate their decisions. It has no power after death.
Life is not eternal, therefore preparing for a transition is the wisest thing to do. One can take care of their loved ones by making their life easier and peaceful after death by writing a fair and just will without ambiguity.
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Posted byRishabh Adukia
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