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Mar 07, 2013, 12.27 PM IST | Source: Moneycontrol.com

How to make a simple will & plan a legacy

There are only two certain things in life – Death and Taxes. A lot of planning goes into taxes. Yet in India, apart from a life insurance policy, not enough thought goes into death.

Kaushal Dalal

CA & Founder, IndianWillMaker.com

Expertise : Property

More about the Expert...

Kaushal Dalal
www.indianwillmaker.com

There are only two certain things in life- Death and Taxes. A lot of planning goes into taxes. Yet in India, apart from a life insurance policy, not enough thought goes into death. The reason for this could be cultural. Indians are superstitious and believe that talking or planning about something means that it will happen. Well guess what. Even if you don’t discuss death, it will happen! I imagine this is what life insurance companies would have had to endure initially in India. It is however now an accepted principle that life insurance does not mean a speedier death. In all probability your karma will decide that.

One of the key aspects of planning for your death, euphemistically called Estate Planning, is making a Will. So if you have a life insurance policy but not a Will, then really you are relying on a third party to provide for your loved ones while not providing for painlessly passing on your own property to them.

In my talks with people about making a Will, a lot of them laugh it off for any number of reasons- I don’t have anything to give away; I’m still young; I have nominations; it’s too complicated to make a Will and I have to make a choice amongst loved ones etc.

Well, none of these are good reasons. Here’s why. Everyone has some wealth or property with emotional value. It’s never too early, unless you are Bhishma and can decide when you are going to die. Nominations, as we will see later, are not enough. And making a Will is not at all complicated. 

In fact making a Will really is simple. It is the least legal of legal documents and if you follow a few simple rules, you can prepare it yourself and it can even be hand written. Contrary to what is the general belief, a Will does NOT have to be Registered, does NOT need to be on a Stamp Paper or even the green legal paper and does NOT need to be Notarized.  And you don’t have to be rich or old to make a Will. Every adult should make a Will.

A nomination is not enough because a nominee, strictly speaking, is not a legal heir. A nominee is someone who takes care of your property after your death until it is transferred to the real legal heir. If you don’t have a Will, the legal heir could stake their claim from the nominee.

To put it simply, if you don’t have a Will

  • Your investments are incomplete
  • Distribution of your property will be done according to your religion’s law and Indian law
  • Your property may go to someone to whom you didn’t want it to go
  • Your loved ones will find it difficult to transfer your property
  • Property related family disputes could arise
  • The court will appoint someone to distribute or manage your property or take care of your minor children
  • Your legacy will be in trouble.
Add life to your legacy Make a Will.

Let’s now look at the legal, practical and emotional aspects of making a Will.

Legal Aspects

To begin with don’t worry about complicated words and jargon.

Simply put, a Will is your direction that after your death, which of your property (ie Estate) should be distributed to whom (ie Legatee).  Since you will not be around to ensure its distribution, you should mention who will do this (ie Executor).  In order to prove that the Will is indeed prepared and signed by you, you need two people to witness this (ie Witnesses).  And of course you have to be an adult to make a Will.

A Legatee (and an Executor, if you are a Christian or a Parsi) should not be made a Witness, else they will not be entitled to the property.  An easy way to remember this is that if someone is asking you to be a Witness to a Will, you should first ask if you are getting anything under it.  If you are, then don’t be a Witness!

Sign every page of the Will and the last page in the presence of two Witnesses.

You can withdraw or change your Will at any time.  The latest Will is valid.  You can add/sell properties that are mentioned in your Will.

What properties can you give

  • Everything you bought from your income
  • Property that you inherited without conditions on future use
  • Your share of every other property
  • Muslims can give 1/3 of their property under a Will.
Practical Aspects:

Here are a few good practices in making a Will (these are only my suggestions; you should consider your requirement and quality of your relationships).

  • Keep it simple.
  • In general, the order of preference to distribute property is (1) Spouse (2) Child(ren) (3) Parent(s) (4) Brothers/Sisters (5) Other Relatives (6) Friends.  Many people prefer giving something to charity too.
  • Preferably don't give any one property to more than one person even if you specify their shares, since that can make distribution complicated.
  • You can describe more specifically some properties which don't change often, such as real estate, or which may be confused with others.
  • Don't describe more specifically some properties that change often, such as "shares of XYZ company" or "ABC Mutual Fund".
  • Always provide to give “residual properties” to some person.  This will ensure that all other properties that you have not specifically mentioned will go to that person.
  • Always select alternates to replace Legatees. This is because death can come at any time and it's possible that a Legatee has died before or along with you.  You may therefore not have a chance to change your Will.  If however, after preparing your Will, you become aware that any key Legatee has expired, you should change your Will.
  • If you have minor children, you should specify who will take care of them if your spouse is not surviving.  Generally this person is someone who your children are emotionally attached to.  You can also specify someone else who will be a guardian for your Estate on behalf of your child(ren) until they become adults.  Generally this is a trusted person and has the ability to take care of your property.
  • Certain persons are required to implement your Will after your death (such as Executors, Witnesses, Guardians etc).  These people should preferably be younger than you, since their work starts after your death.  It is good to get an informal “ok” from such persons.  After preparing your Will if you become aware that any of these persons has expired, you should change your Will.
  • Keep the Will confidential.  Nobody needs to read your Will, including the Witnesses. They only witness your signature. 
You should leave your Will with someone you trust or keep it with yourself and tell someone you trust where it can be found.  If you want, you may register the Will to make it difficult for people to claim that the Will is not genuine.

Apart from making a Will, the other aspect of Estate Planning is organising your documents and information so that these can be found easily to make distribution of your properties smoother and bringing other things to a closure (life insurance etc).

Emotional Aspects:

Some people grapple with emotional aspects of who they should give the property to. Some of these issues and my general suggestions are given below

  • “If I have only sons or only daughters then it’s easy.  But if I have son and daughter, then what should I do?”  My suggestion is give equally, unless any of them is financially worse off, in which case you may give that person more.
  • “I have a spouse and parents.  How do I protect my parents? Alternatively how do I protect my spouse?”  Leave something for your parents from which they can survive and give everything else to your spouse.
  • People also consider other issues such as who’s been good to me or who has greater needs.  My suggestion is be as fair as you can and hence prepare a Will when you’re calm.
Conclusion:

So here’s the bottom line.  Secure the future of your loved ones and your legacy, as it’s never too early.  Make a Will.

The writer is a CA and Founder at www.indianwillmaker.com

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