One day each one of us is going to leave earth. No, I’m not talking about outer space missions. I’m talking about death. It is inevitable just like taxes. And if you have loved ones you must make sure they get whatever belongs to you without fighting among them.
Nobody would have forgot the Ambani family feud over Reliance’s assets. This happened because Dhirubhai didn’t leave a will. One of the best brained businessman in the world didn’t make a will leading to bad taste among his sons.
Don’t do that to your family. Make sure your write a will and let the world know how your assets are to be distributed.
How to write or make a will in India
I felt the idea to write this post after seeing a recent fight between my twin cousins (my aunt’s sons) which is now in the courtroom. Their father left a sizeable estate of around Rs. 3-4 crore to be fought over . He too didn’t write a will.
We will first understand what is a will, how to write a will, who are the persons involved, the disadvantages if you don’t write a will.
What is a will
A will is a legal document which says how your possessions are to be dealt with when you die. So even if you’re estate is small or your intentions regarding it is simple you should still make a will.
If you do not make a will, a number of problems can rise in the future, as follows.
1) Your survivors may waste time trying to find out whether or not you did write a will. It may take them a long time to trace all your possessions. They may have to spend time and money tracing relatives.
2) If there is no will it may take longer and cost more to separate the estate.
3) Without a will, a relative/executor will usually be appointed to sort out your affairs. At the time of settlement he or she may prefer not to take on this role.
5) one more drawback if you do not write a will, is that your relatives may have to pay inheritance tax, that would not have been the case had you shared a will to pass on to your possessions tax efficiently.
So apart from avoiding this problem and ensuring that your possessions are given away as you choose, a will can be used for other purposes. You can appoint guardians to care for the children, and you can express your preferences about funeral arrangements. Also any wishes about the use of your body for medical purposes after death.
Similar Wikihow article: How to write a will
So who are people who will be part of the will?
There are essentially three players who will be involved in a will:
- One is the will owner or the Testator. This usually is the man or woman whose will it is. So if your possessions are going to be defined in the will then you become the testator. For this you must be aged 21 or above, and must be of good mind. By good mind we mean that, a sound and judgmental mind, and you should not be suffering from mental illness.
- The second person involved in the will would be the beneficiary, a person, and a group of persons or an organization who are left something under the will.
- The third-party is the executor or the personal representative. So this would normally be the person, people, your lawyer or any organization that sees that your estate and your assets and possessions are distributed following your death.
Types of Wills
1) Unprivileged and Privileged Wills – The wills we usually are unprivileged wills. Privileged wills are those written by service men in the field of battle under section66 of Indian Succession Act.
2) Joint wills – A joint will is written by 2 or more persons. Joint wills are revocable by either of testators and comes into effect usually after death of last testator. But if it is executed as a single document, then each beneficiary gets the benefits as assigned as each testator dies.
3) Holograph wills – The will written by hand of the testator.
4) Concurrent Wills – If testator wants to have separate wills for assets in different countries it can be done with Concurrent wills.
5) Duplicate Will – Just in case the testator wants one original with him and other with attorney/court.
6) Sham Wills – If a person writes a will. Then completes all the formalities only for some hidden objective, it is considered nullable. However, one needs to prove the intent of the will.
Structure of a will
1) Declaration – This part must contain who you are – name, address, age, family line, gender etc. It must also state that you are of sound mind and date of will. It is advisable to have a clause that revokes any previous existing will.
2) Asset Details – This must contain all your assets. Your bank accounts, demat account, property details, gold, cash etc., Please note that you should be very descriptive of all the assets.
3) Beneficiary details – Here you must mention which asset goes to whom. Also be very clear of the beneficiary. You don’t want two people with same name fighting over. For eg., Laxmi must have my house.No ambiguous statements like this.
It should be like – The house with address XXXX worth will go to my wife Laxmi in XX percentage.
4) Executor details – Mention the name of the executor who will carry out/execute your will contents and what are their powers. Whether they have power to sell or rent or act as nominee.
5) The Signing/Witness details – Here the testator must sign the will with date. The witness along with full address details.
What happens if you don’t write a will?
So what happens if you ( a Hindu Male) die without a will?. If you die without making a will (This is called Intestate, the law automatically takes its own course, and it will decide how your possessions will be passed on. The Hindu Succession Act applies for Hindus, Sikhs, Jain etc., For Muslims, there is a different act based on which possessions will be split.
For example the laws make sure that your immediate family is protected first. So if you are the husband, then the law states that your wife,mother, your children are protected first (Class I heirs). Class I heir also includes your widowed daughter in law and her children.
Your father, brother/sister and their children, your daughter’s children are some of Class II heirs. Class II heirs are eligible to get a share only if no Class I heir is available.
This division per Hindu Succession Act might coincide with your wishes. But in some cases it might not result in your estate being used as you had expected or would have wished.
Furthermore people who are not formally part of your family for example, an unmarried partner, your lover, they would have no automatic rights under the inheritance laws.
Where part of all your estate would pass to your beneficiary under the inheritance rules this will applies only if he or she survives you by at least 28 days. The survivor-ship provision makes sure that in case where you and your spouse both die within a short period of one another, the relatives of each of you benefit from your respective estates, rather than everything going to the relatives of the second to die.
Bear in mind that a person that is under the age of 21 cannot make a valid will. So the estate of a child who dies including any assets held under a trust would be subjected to inheritance laws.
The inheritance laws or intestacy assume that all your possessions could be sold by your personal representative or executioner, to convert your whole estate into cash which would then be distributed according to the rules described in the law.
In practice the possession would not necessarily be sold and could be passed on intact but problems can arise where there is a large estate. For example the family home, if it needs to be split between two or more beneficiaries.
How to write a legal will in India – Points to remember
A will to fulfill its purpose must record your intentions clearly and unambiguously and should include contingency plans to cover the possibility. For example of a beneficiary dying before you, there is also various loopholes to be avoided some that would invalidate the will and leave your estate to be subject to the laws. And others which would not invalidate the will but would interfere with the intentions expressed in it.
For example, a valid legal will must be signed by two or more witnesses, who may not also be beneficiaries under the will. So if you are leaving anything to your husband and wife do not ask him or her to be a witness to the will would be valid but your spouse would not be allowed to inherit under it.
If your affairs are complicated for example if you run a business, or if you have step children, or if you do not have proper knowledge of the law relating to writing wills best to employ professionals rather than drawing up the will yourself.
The next step in making a will, is appointing executors. You have a choice when it comes to deciding who would sort out the affairs in accordance to your will. You can either appoint a professional as an executor for example a lawyer or your bank or you can appoint some friends and relatives.
In general professionals often charge more and if problems arises, such as long delays in beneficiaries can do little because they not themselves have a contact with the executor. So have little access to information and limited power to challenge the executor’s actions.
So it is often wise to appoint relatives or friends who do not inherit directly from you. If need be they can appoint or get help from professionals and lawyers.
You can choose anyone you like to act as executor the only condition is that they need to be above 21 years of age. Normally you should appoint two executors just in case one dies before you or refuses to act. Make sure that you ask the people concerned whether they would be willing to take the role.
One should also bear in mind that being an executor is a demanding task , your executors will need to locate your will, personal papers, track all of the assets, establish their values, deal with the death, funeral expenses, contact your beneficiaries, handle the paperwork and deliver everything and ensure that every tax is paid.
So make sure you choose someone who has the time, energy, confidence to deal with [??] form filling. You can make your executors life easier if you record all your assets their location and any gifts you have made along with your will and personal papers.
The next stage is reviewing your will. Once you write a will that does not mean that your job is done, you should not view making a will as a one-time task and forget it. As your circumstances change so will your needs, and you should update your will accordingly.
For example in some situations if you re-marry, any will, made before that particular marriage will automatically be invalidated. Your ex-husband or wife loses all beneficiaries unless you have named them not by relationship but by name. In other respects the rest of the will stands.
The same is not true of separation the whole will including the request to your spouse is still valid in that situation you should review the terms of your will.
Other situations you might want to review your will are the birth or adoption of a child or if you decide that you would like to leave a legacy to a charity. It is wise to review every two years to check that it reflects your current wishes.
If you decide to alter it more it is better to draw up a new will containing the revisions rather than to add an amendment. The trouble with amendments is that they can easily become detached and lost.
As mentioned earlier, new will should always start with the clause revoking any previous wills this automatically invalidates any earlier wills. And once you have formulated and reviewed it make sure that you store it in a place of safety, and your executors or family solicitors or your lawyers must be aware of where the will is.
Make sure that only your executor will have access to the will. Also make it a point to mention it to them that they have been appointed as executors and what you would like them to do once you pass away.
Remember if you are having people whom you love and you like to give them part of your possessions make sure you write a will and making a will makes it easier for them to receive benefits according to your wishes. We do not want to leave a legacy that our survivors fight among themselves for our possessions.
It is very difficult to make a will. Especially dealing with the emotional part. But it is one of the wise things to do. We all know how many brothers fight over their parent’s assets. Don’t let that happen to your family as it may separate them.If they know that you wrote the will they will respect your wishes and may not fight.
Plan a will, write a will, store it in a proper place, appoint executors and review the will periodically.