Legal heir or nominee: Who will inherit your assets?

Is it enough to appoint nominees for your assets or do you still need to make a will? Gaurav Mashruwala, Certified Financial Planner clarifies that you need to have both. “The moment you make your first asset, you should do a nomination so that upon your death somebody receives that asset and it doesn’t get into regulatory requirements. But you have to have a will because based on the will, your assets will be distributed,” he explains.

According to law, a nominee is a trustee and not the owner of the assets. In other words, he is only a caretaker of your assets. The nominee will only hold your asset as a trustee and will be legally bound to transfer it to the legal heirs. For most investments, a legal heir is entitled to the assets of the deceased. A legal heir will be the one whose is mentioned in the will. However, if a will is not made, then the legal heirs of the assets are decided according to the succession laws, where the structure is predefined on who gets how much. “Nomination is the right to receive, will is the right to own except in case of equity shares where nomination prevails,” Mashruwala added. Below is the edited transcript of the interview Q: What is the difference between a will and a nomination? What are the circumstances under which either should be used? A: From simple man’s language perspective, a nominee is somebody who receives the asset upon death of a person. However, the nominee cannot own it. Let me simplify that. Say, if a husband has nominated his mother in life insurance policy. Upon his death, the entire proceeds of life insurance will go to the mother, but the mother can’t own it if a will has something contrary written. If the will says that a portion of or the entire asset should go to his wife and children then the mother will have to part with that. Nomination, in simple language, is the right to receive. But a will shall decide who will eventually own the asset. In case there is no will then there is Indian Succession Act, Hindu Law, Mohemmadan Law etc. Summing up, nomination is the right to receive, will is the right to own except in case of equity shares where nomination prevails. Q: If a person were to nominate for all his assets, would he then need a will? A: If, for example, a person has said that he is nominating all his assets to his brother, but in a will, he writes something different or if there is no will then based on the Indian Succession Act, Hindu Law or Mohemmadan Law, the brother will receive all the assets but he will have to distribute it. If there is a will and it says that the entire asset will go to his brother, then the brother will own it. But if the will says anything contrary, the brother will probably more act as a trustee holding onto assets till the final will is out. If there is no will then the nominee will hold onto the assets and it becomes his. _PAGEBREAK_ Q: Do you advise individuals to do a nomination as well as a will? A: You require both. The moment you make your first asset, you should do a nomination so that upon your death somebody receives that asset and it doesn’t get into regulatory requirements. But you have to have a will because based on the will, your assets will be distributed. As I said, if there is no will then there is Indian Succession Act, Hindu Law, Mohemmadan Law etc. that prevails. Q: An investor’s grandfather’s will is being contested. How should he proceed? A: The final will will prevail, however, if your uncle is contesting saying he was not in a stable frame of mind then it will be based on evidence. Whatever is the situation, was he really not in stable frame of mind? What would witness say? Ideally in these circumstances, we recommend having a doctor as a witness, because then it becomes more foolproof. Your uncle can definitely contest, but the court will look at the evidence and based on that, the decision would be given. Q: What succession laws apply for legally adopted children? A: We have Indian Succession Act, but ideally, if you make a will then it’s foolproof. In a will, you may want to mention the relatives and say that you have a legally adopted child and you are bequeathing your assets to him or her, then there is no need for any Succession Act. The issue only arises if somebody passes away without making a will. Can assets be bequeathed to legally adopted child? Yes. Can it be willed? Yes. Is it accepted by law? Yes, it is. If there is no will then obviously it will get into Indian Succession Act and the decision will be based on whatever the Act says. But legally adopted children have a right in the assets of parents. Q: In case a will is not made, does the legally adopted child have the same rights as the natural child? A: Exactly. As long as the child is legally adopted, all the formalities are complete, there is no issue on that.