Protect your hard-earned wealth with a will -- halt family rifts and secure your children's future. Pranjali Madnani explains how.
A Will is a document stating the intention of a person about the distribution of assets after demise.
While most people either delay the process of writing their Will or simply negate its importance, the fact remains that when a person dies intestate -- without a Will -- the distribution of assets causes rifts in families and in some cases leads to emergence of forged Wills. There are many other reasons why one must consider writing their Will.
Why making a Will is important
One must write a Will as it overrides the personal law of succession.
- If there is no Will, then the Courts and applicable personal law decide the fate of distribution of your hard-earned wealth.
- A Will minimises the possibility of a forged Will by a family member or even an outsider to have your assets transferred in their name.
- One can appoint a testamentary guardian (A testamentary guardian, named in a Will, cares for minor children after a parent's death, ensuring their upbringing if both parents are gone)in the Will for their minor children.
- A Will can avoid outsider claims based on past relationships.
- If you have varied classes of assets, then a Will can be used to consolidate the details of all these assets giving your family and legatees a clear picture of all your holdings.
- You can use A Will to bequeath assets to friends and non-relatives tax-free.
Who should make a Will
If you hold assets, inherited or self-earned, then you must write a Will.
If you think you are 'too young' to write a Will, then think again. Unexpected illness or a pandemic may still give one a chance to ponder upon their estate plan. However, an accident may not even spare a second.
For instance, a young CEO passed away in an accident leaving behind his wife, two minor children and mother who became the legal heirs as per the Hindu Succession Act as he left behind no Will. He may or may not have wanted his assets to be divided as per the law.
How to draft a Will
The law prescribes no particular form of a Will, but it should state the intention of the testator (person making a Will, distributing assets after death) clearly and should be free from ambiguity.
It must name the beneficiaries clearly for each asset.
It is advisable to appoint an executor under a Will, the testator must be of sound mind, not a minor and must mention in the Will that no force, coercion or undue influence was used when he wrote the Will.
If any Will were written earlier, then they must be revoked under the latest Will. Testator must have A clear title in the properties that are sought to be bequeathed under the Will.
After drafting the Will, the testator must sign the Will in the presence of at least two witnesses, and the witnesses must also sign in the presence of each other and the testator.
The Will may also be registered at the sub-registrar's office.
Whether registration of a Will is mandatory
A Will can be registered with any sub-registrar within whose jurisdiction the testator is permanently or temporarily residing.
Registration of a Will is not mandatory but highly recommended because it is difficult to challenge a registered Will. It also minimises the possibility of someone coming up with a forged Will as the registered Will holds more credibility.
How a Will is executed and enforced
On the Testator's demie, the executor's responsibility is to gather the necessary documents like original Will, death certificate, PAN card, Aadhaar card, etc and take on the formalities for transfer of assets to the intended beneficiaries.
The executor will pay off any debts that the testator may have, using the estate of the testator and collect any loans that the testator may have given during his lifetime.
One may note that in the cities of Mumbai, Kolkata and Chennai, probate is additionally required for transfer of immovable properties. A probate is a court's order confirming the validity of the Will.
Common misconceptions around Wills
Wills are powerful but we see hesitation due to some common misconceptions around Wills.
- That once a Will is written, the assets are transferred to beneficiaries. This is not true because the testator retains ownership and control over properties till her/his demise.
- That nominations are enough. Nominees are not heirs but custodians. They do not inherit any rights over the properties.
- That a Will cannot be changed. It can be changed multiple times.
A simple document called A Will can save your family from myriad problems that they may have to face after your demise.
A Will can be drafted in the simplest and in the most complicated way possible. But it must be made by anyone who owns assets, inherited or self-earned.
Pranjali Madnani is Director, Estate Planning, Agnam Trustees and Family Office Private Limited.
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