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In the event of a person’s demise, their assets will be preserved, managed, and distributed through the estate planning process. Since the recent hideous experience global pandemic due to spread of COVID-19, it has gained admiration and is being considered by many people as a way to protect the family’s wealth, prevent arguments within the family, and simplify the process after their demise.

A last WILL, one of the key legal instruments, is necessary for such efficient estate planning and asset distribution. One can specify what will happen to his/her estate after his/her demise in a last WILL and testament, which is a formal document. The bulk of family disputes, however, particularly developing nations like India where the practise of nuclear families is disbanding into smaller pieces to form nuclear families, are occurring without a last WILL. Hence, these days, there are numerous justifications for having a WILL. When someone passes away without a WILL, critical choices are left up to the local court and state laws, and the decedent has no influence in who gets the property and other assets of the demised. Additionally, not having a WILL may make things harder for the members of the family of the deceased.

A “Will” is defined as the legally binding expression of a Testator’s ‘will’ with regard to his or her property that the Testator wishes to be followed out after death in Section 2(h) of The Indian Succession Act, 1925. Consequently, a WILL is a legal document that is effected after a person’s death but is prepared throughout the Testator’s lifetime. A will is a legally binding document that details the Testator’s means the writer’s instructions for how to distribute their possessions after death.

It becomes essential to create a WILL to make sure that an estate is distributed in accordance with the Testator’s intentions. If they don’t, their assets will be divided up in accordance with the succession laws that apply. The advantages of estate planning are vast and frequently guarantee tranquillity and a WILL is an important part of it.

According to the Hindu Succession Act, 1956, succession for Buddhists, Jains, Sikhs, and Hindus is governed. Male family members who pass away intestate i.e. without a WILL, have their assets and estates pass first to their immediate heirs from Class-I heirs. The widow, mother, son, and daughter will each receive an equal portion of the assets among Class-I heirs.

In the absence of Class-I heirs, the assets pass to other heirs in the following priority order: Class II heirs include the father, son’s daughter’s son, son’s daughter’s daughter, and so forth. Agnates: are relatives only traceable through males, such as a cousin from the father’s side; Cognates: are relatives only traceable partially through males, such as a cousin from the mother’s side.

Need for a ‘WILL’:

1. REDUCE – stress, costs, and time:

To begin the legal process governing the transfer of assets, nearly all estates must appear in probate court. The legal procedure, known as intestate administration, can become extremely difficult if there is no WILL of the deceased. Without a WILL, the estate of the deceased must be administered by someone the court appoints. And the family members may find this to be time-consuming, expensive, or even a source of contention. One of the biggest advantages of having a WILL is the opportunity to expedite this legal process. Having a WILL enables the Testator to designate the person they wish to handle their estate, making things easier for their loved ones.

2. DETERMINE – inheritance of the property and assets:

The Testator may name specific parties as beneficiaries for certain assets. Beneficiaries may also be named after the “residuary” of the estate, which includes any unlisted property. The executor, who will also be in charge of the WILL, will distribute these assets. A WILL can also be used by the Testator to help ensure that certain persons don’t receive anything.

3. PROTECTION – of the minor children:

Choosing a guardian for minor children can be done through a WILL if the Testator is a parent. Typically, in cases where one parent passes away, the surviving parent is granted sole legal custody. However, one of the most crucial justifications for having a WILL is in the event that both parents pass away. Minor children’s everyday necessities, such as food, shelter, medical attention, education, and clothes, will be met by a guardian. Additionally, a court will be required to select a guardian on behalf of the deceased parents if they fail to name one in their WILL. The person who will be raising their minor children may not be someone they would have chosen.

4. SECURITY – of digital assets:

Online accounts like Facebook, you-tube channel or email, as well as digital files or property (pictures, videos, domain names, etc.), online banking credentials, digital depositions etc. can all be considered digital assets. The Testator can designate a digital executor in his/her WILL to look after these assets after Testator’s demise. The Testator can designate specific individuals to handle them, and can also specify how he/she want them to be handled.

5. REDUCE – the family conflicts:

It makes sense to have a WILL if Testator’s family dynamics are complicated. Such family will have to assume what Testator’s final desires were if he/she pass away without a WILL. They probably won’t always agree, either. This ambiguity can lead to conflict and even battles that can last for a lifetime. By taking the guesswork out of the equation, making a WILL solves this issue.

6. CONTRIBUTE – to society and leave a legacy:

Many people wish for their demise to have a positive impact on the society. A great way to achieve this is through supporting the organisation or causes that one care about the most. The Testator can safeguard his or her legacy by including bequeath to a charitable trust / organization in a WILL.

7. INSTRUCTIONS – for the funeral:

It’s possible that one shouldn’t plan his/her own funeral. However, if he/she do give it some thought now and include instructions in a WILL, can alleviate the load on their surviving family members. These instructions can help the executors and loved ones understand the preferences even though they are not legally enforceable. A WILL can offer instructions, to designate a funeral executor, the procedure of funeral, make wishes for last resting place, suggesting the amenity and venue, and more.

Essential Elements in Preparation of a WILL:

To avoid any ambiguity or interpretational problems, a WILL should be written in plain and simple language. In order to make the process comprehensible, the WILL may be written or translated in the Testator’s native tongue. The Testator must correctly and fully comprehend the provisions of the WILL.

  • Listing Wealth: A list of the Testator’s assets and liabilities must be prepared, including any real estate, bank deposits, stocks, investments, mutual funds, and so forth. The Testator would also need to consider the nature of his / her assets and whether they could all be bequeath to others through a WILL.
  • Beneficiaries: A list of beneficiaries in the WILL should be made very clear. The Testator may make provisions for unforeseeable events, such as transferring an asset to a second designated beneficiary or legatee if the original legatee passes away before the WILL takes effect, and so on. Similar to this, the Testator may stipulate specific requirements before the intended beneficiary is granted access to an asset or piece of property. If any of the legatees are minors, the Testator may name guardians to hold the property on their behalf and for their benefit.
  • Bequeath: A Testator may take into account elements including the type, use, value, and other characteristics of the assets while deciding how to distribute the assets amongst the beneficiaries under the WILL. Hence, the Testator’s intentions with regard to bequeath of each asset should be made crystal clear in the WILL. The assets that are the subject of the WILL should be identified, together with the legatees to each property.
  • Witness: A minimum of two independent witnesses who are adults must be present when the WILL is signed. It is advised bearing the following things in mind regarding Witnesses: the beneficiaries (Legatees) under the WILL should, to the extent possible, refrain from acting as Witnesses to the Will; and the Witnesses should be trustworthy, dependable, and able to attest to the authenticity of the entire process of preparation of WILL.
  • Medical Fitness: To prove that the Testator is mentally competent, of sound mind, and able to make his or her own independent decisions for writing his or her WILL, a doctor’s certificate should ideally be included.
  • Registration: The law does not mandate registration of the WILL. The Testator’s personal decision to not register his or her WILL does not cast doubt on its validity. However, once a WILL is registered, it is put in the Registrar’s secure possession and cannot be altered, lost, damaged, or taken.
  • Amendments: The Testator can include a clause in a WILL to deal with assets acquired after the WILL was prepared, if the status of beneficiaries or assets changes over time, the Testator should update these and the will can be amended to this extent to ensure that it still reflects the Testator’s wishes. This means that the most recent WILL is legally binding and takes precedence over any earlier ones.
  • Executor: The executor will serve as the Testator’s legal representative after his or her death, the Testator should make a prudent choice when selecting one. In accordance with the instructions laid out in the WILL, the Executor is in charge of disposing of the Testator’s assets. The executor of the will is typically chosen by the Testator to be a trusted confidant or counsellor who can ensure the efficient and orderly transfer of bequests.
  • Safe Custody: Several significant considerations that the Testator may make when drafting the WILL include who to contact, who should be aware of it, and where it should be kept. In order to prevent any disputes within the Testator’s family after his or her death, the Testator must carefully consider the same.

Usually, the people put off writing or updating their WILL because they believe their loved ones will automatically inherit. This isn’t always the case, and they may face a lengthy and costly process of probate. Please keep in mind that the WILL only addresses the current situation, and as circumstances change, the necessity to alter the WILL varies with time.

By making or updating the WILL, one may provide for his or her loved ones and provide them with a clear path to follow after his or her demise. This is one of the key justifications for having a WILL since it provides many people with peace of mind. “When there is a “WILL” there’s a way…!”

Disclaimer: The information provided in this article is for general informational purposes only. While an author tries to keep the information up-to-date and correct, there are no representations or warranties, express or implied, about the completeness, accuracy, reliability, suitability, or availability of the information. Any views or interpretations described in this article are the author’s personal thoughts and do not constitute legal or other professional advice. You may discover there are other views or interpretations to accomplish the similar end result.


Author Bio

I am practicing as a Lawyer for past 12+ years in the areas of Civil matters, Property and Real Estate, Family matters, Civil litigation, Insolvency matters and General Advisory which includes Indian Property Laws, Succession Laws; Commercial Contracts; Insolvency Laws; Conveyance, Will, Gift, Priva View Full Profile

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July 2024