CA Rishabh R. Adukia
Human life is capable to create his/her own destiny. He/She creates his/her own path of success. We work hard to create a comfortable life for ourselves and our loved ones. Every individual acquires some wealth during his/her life time. Even an average individual has some balance left in his/her savings account which he/she wishes to pass on to his/her next generation.
As humans we work hard in creating assets and wealth. However death is the most certain event of any human’s life. It is this certainty that one needs to spare sometime at this movement to realize what will happen to your loved ones after one’s death. One must plan for smooth transition of the wealth that he/she has created to be passed on to his/her future generations. Thus “Will” becomes an important document every individual should make.
What is a Will?
In simple terms, a Will is the wish of the person making it, with respect to the property that he/she has acquired during his/her life time. It brings out the wish of the writer as to whom and how his/her property will be distributed.
Need to write a Will
Although a very important document, very few individuals write up a Will. The reason for not writing a Will could be that one does not accept the mortality. The other could be that it’s too early to write a Will or it could be that Will is only for rich men and women who have lot of properties and wealth. But the reality is that a Will is essential for every individual who has some wealth that he/she can leave behind to his/her successors.
Any day and every day is a right time for making a Will. It can be written as soon as one owns a property specially an immoveable property. The purpose may partly be achieved by making nominations but it is not a full proof solution.
More over a Will is an evolving document which means it can be changed whenever one wishes to make changes. One may add a property or gain more shares or may want to allocate some fixed amount for a specific use in his/her Will. One may change a Will when there are person is addition in family like when One gets married or when a child is born. This makes it possible for an individual to write a Will at the very earliest stages of life and not postpone it to the later stages of life.
The most important reason to write a Will is that it gives the Person complete control on how his/her assets would be distributed after his/her death. Here the Person may distribute his/her assets proportionately or disproportionately. The Person may decide to give away his/her 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 Person.
It is also an important document to decide succession in business. It reduces substantially chances of disputes among successors and beneficiaries. Be it a Mahabharat of mythology or a court room drama among legal heirs of contemporary business men, the core issue is division of family business and assets. This document to substantial extent resolves the issue if the proper and detailed methodology of transmission of business and assets is given in the Will.
What happens if there is no Will?
In absence of a Will, the property of the deceased is passed on to his/her 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 divided 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, speak about 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 e.g. if Suppose you wanted your minor daughter to have Rs 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 Rs 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 / consultant. The Will needs to be written on a plain paper giving following particulars:
- Personal details of the Person making the Will, such as, full name, address, place, date and also family background.
- Declaration stating this as the Last WILL and Testament.
- Executor who has to execute this Will after the death of the Person – name, address and relationship.
- Details of all the assets held by the Person – Wherever located on the globe – In India / outside India:
i) Immoveable property with full details of location.
ii) Moveable assets including bank account, demat account, PPF, insurance policy, etc.
iii) Details of Bank Locker/s.
iv) Details of business assets including and more importantly shareholding and ownership of various entities. This is very relevant for succession planning of the business.
v) Jewellery, etc.
- Residuary assets – assets acquired and/or accumulated in future.
- Details of liabilities, if any and mode of discharge of the same. Also, in case of future liability, mode of discharge of the same.
- Details of beneficiaries who has to receive assets and properties under this Will.
- Wish list. This is very important.
- What if the beneficiary is no more during the life the Person?
- Name, address and details of guardian in case the Person have minor children. This has become important because of nuclear family concept prevailing now a day in our society.
- Declaration for being of sound mind and that the Person is not making the Will under any undue pressure. If a person is very old, it is better to attach a doctor’s certificate certifying his/her mental health and sanity.
- Two independent witnesses. The Will should be signed and witnessed by two independent persons.
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 or the registrar’s office of the district court under whose jurisdiction a major part of property lies.
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 this possibility of contesting the Will on these grounds is minimized.
Points to remember while writing a Will
Although a Will is a simple document, writing it in the most precise manner is the 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 movable and immovable properties of the writer of the Will. Give out every detail of the property with descriptions. Give name of the person whom you want to inherit a particular property, name address and your relationship with him/her. One has to clearly state which property / asset will go to whom – whether singly or jointly (if jointly, in what proportion).
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. The executor is responsible to distribute the assets of the deceased person in accordance with the wishes of the deceased as enumerated in the Will. Therefore, it is important as who 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 your relative, friend or even a third party executor. A legal heir (or beneficiary under the Will) can also be an Executor. One has to be very careful in selecting the executor as he/she should not be become obstacle in transmission the assets from the person to his/her legal heirs.
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 care taker of the assets till he/she becomes an adult. If no guardian has been appointed, and the owner’s signature is required to sell, finance or conduct other business transactions, then in the absence of the guardian, 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 he/she 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.
Nomination
Nominee is usually a custodian, a care taker till the estate is finally distributed. Technically, he is not the owner of the property unless he is also a beneficiary of that property as per Will. Some legal disputes have arisen on this aspect.
It is always advisable to have nomination done and the nomination be done in favor of the person who is the beneficiary of that asset as per Will.
Conclusion
Immortality of life is neither possible or is essential, therefore preparing for a transition is the wisest thing to do. One can shower his /her wealth along with the blessings on loved ones by making their life easier and peaceful after death by writing a fair and just Will without ambiguity.
So, have nomination, make Will and synchronize the two.
(The Author is a qualified professional and can be reached at adukia.rishabh@gmail.com)
Author Bio
In the United Kingdom, the concept of the Lasting Power of Attorney seems to be in vogue. In India, is there any enactment for such Lasting Power of Attorney?