In the last article in this blog titled Is your Wife Aware of Your Financial Status? I had suggested that we created a Will. One of my long time friends Rajesh had asked in the comments section about the “How To” part of creating a Will. Though I am no Legal Expert, from an individuals perspective, did some research on the internet and have come up with the below article. If you find any information below incorrect, please feel free to leave a comment and I will be glad to correct it. At the end of the day, we don’t want to be doing something incorrect…
Why Create a Will?
This is a pretty straightforward question. Just think of this
After our time, do we want our loved ones to fight with one another on who gets what from our property?If you feel, my family is not the typical movie type family and such petty fights over assets or property will not come up, then think again. Your opinion is based on the current state of affairs in your family. Are you sure that 30 or 40 years down the lane, when the time comes to split your property, will your survivors still be what they are today? Let us hope and pray that our family members don’t end up fighting with one another, but to be on the safer side, it is always a good idea to write down a WILL that says who gets what. This way, they don’t have a choice but to accept your decision. After all, it is your wealth and you have all the rights in the world to decide who gets what.
Another important reason on the “Why” part is that, a friend or a close associate could have been instrumental in your growth and success and to thank them or their survivors you may want to leave a portion of your wealth to them. Or maybe you have a loyal and faithful servant who has served you for many years and you want to reward them for their loyalty by leaving them some cash. All this will not happen if you don’t create a formal WILL. You may orally instruct your family members to carry out your wishes, but what is the guarantee that they will do it? So, the best thing for us to do is, create our WILL while we are alive.
Are you thinking, I am no Tata or Birla or Ambani. All I own is my humble home, some jewels and some cash in the bank. Should I still write a WILL?
The answer is a resounding Yes my friend. No matter how big or small your assets are, it is always a good idea to write down a WILL.
So, the next logical question - What is a Will?
A will can be made by anyone above 21 years of age in India. You can make the will even on plain paper in India. It is not legally mandatory to make-out ones will only on Stamp Paper. However, it is advisable to write our will in our own hand writing, as the same can be verified by experts at a later point in time (After us of course) in case any of our family members or relatives raise any doubts.
WILL – A Taboo Topic in India
Unfortunately in India, the word WILL is extremely sensitive and in many cases taboo. There is a widespread misconception that if someone tells us to make a will, the person is indirectly hinting us that our end is near or that the person is indirectly eying our property.
The fact is, creating a WILL is a must for every individual who wishes to decide what portion or % from his wealth will be inherited by which family member.
What happens if we do not Make a WILL?
First and foremost, if an individual dies without preparing a WILL, his/her wealth is distributed as per the “Laws of Succession” in India. There are dozens of government rules (As per the law) on how wealth must be distributed among the family members. The laws of inheritance and succession are complicated and diverse in nature and more importantly are different for Hindus and Muslims. Unless lawyers are involved, there is no amicable way of settling the situation.
Second of all, think of the inconvenience this will cause to your family members. In the worst case scenario, one of your family members could sue the others for incorrect distribution of wealth and kick start legal proceedings using a Lawyer. Imagine the chaos this will create. All your family members will be at the mercy of lawyers. Not to forget the time, energy and money that will be wasted for them to go through the Indian legal system.
To summarize, if you spend some time and write up a WILL, you can save your survivors a lot and I really mean a lot of headache.
Creating a WILL
A will has several parts and all of them have to be duly completed in order to create a complete and valid will. Actually speaking, there is no standard legal format for WILL’s that are created by individuals themselves. However, there is a template which has been used widely. It is simple, logical and mostly common-sense. It will contain the following:
Section 1: Declaration
This will be the first section of your WILL. Here you write down your details like name, age, address etc. and then mention that you are making this will in your full senses and free from any sort of external influence.
Section 2: Details of Assets
The next section should contain the list of all your assets like your house, any land, bank accounts and the amounts in it, investments, shares, mutual funds, jewelry, etc and etc. We must also mention the location where the documentary proof like original land documents, bank receipts/pass book etc are stored by you. In fact, your WILL too must be kept safely preferably in the same safety deposit box along with all other valuable documents.
Make sure that you personally share details like the Bank Manager’s name, how to contact him and gain access to the safe deposit box in case of your demise to the Executor of your WILL. Also, make sure that you introduce the Executor to the Bank so that they know who it is and allow him access to your property after your time.
Section 3: Details of Sharing
Now, we are talking business, this is the section that outlines the most important aspect of the WILL.
“Who Gets What”
A point to note here is that, if the person to whom you are leaving some wealth is a minor, say your grand child, make sure you appoint a custodian for the assets until the individual you have selected reaches adulthood (18 years). Should I even mention here that the custodian must be a trustworthy and reliable individual who really cares about the welfare of the minor under consideration here?
Section 4: Sign the WILL
So now, we are the last step. Once we have completed writing our will, the next step is to Sign the WILL in the presence of at least two witnesses. These witnesses will have to sign the will after you sign it, certifying the fact that you signed the will in their presence.
Important Points to Remember:
1. Make sure that the Date and Place, where all this is happening is clearly indicated in the WILL
2. Make sure that both you and the witnesses sign in all pages of the WILL (In case it actually runs to multiple pages)
3. The Witnesses cannot be a direct beneficiary of your WILL. It can be friends, neighbors, colleagues anybody as long as they don’t gain anything from your WILL
The last step in the process is that, after you finish everything, place the WILL inside an envelope and seal it. The Seal must bear your Signature and the date it was Sealed. The Witnesses need not sign on the Seal or the Envelope.
For everyone's benefit, below is a sample will based on the template that was just outlined above:
What is the Role of the Executor?
Did you note the fact that, in the WILL we have appointed somebody as the “Trustee & Executor”. Do you know what his role or responsibility is?
He is the individual who is responsible for dividing your wealth among the beneficiaries indicated in your WILL. He will take possession of all your assets including the WILL from the “Safety Deposit Box” and then distribute them to the beneficiaries one by one.
It is not legally required to get the WILL executed in a court in the presence of a Judicial Magistrate. However, if you wish, the will can be executed in the presence of a Court Magistrate or any Public Notary nominated by the Government Authorities.
Changing the WILL
Have you heard of the old saying “The Only thing Permanent in Life is the Change”?
Your life changes every day, you could buy or sell assets, your relationship with your family members may improve or deteriorate etc. All this may warrant a need to alter the WILL.
Did you note that in the first section of the WILL we mentioned that our current WILL supersedes all the prior ones? The whole purpose of that statement is to ensure that your latest WILL is the one that is executed.
But, do remember to note the Date correctly in your WILL and add this Supersede/Revoke clause. Otherwise, you will be actually complicating things because the sharing ratio could be different in two versions of the WILL and the benefactors could take things to the Court and you know what will happen that, don’t you?
Do We Need a Lawyer to Make the WILL?
Actually speaking, the simple answer to this question is “NO” but it would be a good idea to involve a lawyer. This is because, many of the “I did it myself” kind of WILLs often miss some key components as required by Law. For ex: Missing witness signatures, or no reference to nullify the prior wills, not mentioning all assets etc and etc.
How many movies in Hindi, Tamil, Telugu or whatever your local language in India is, have been made where sons and daughters fight over access to their dead father/mothers property? Have we forgotten the fact that this is perfectly and realistically possible even in our family?
Involving a Lawyer can minimize many of the common mistakes in the “I did it myself” kind of WILLs.
Let us say you have a son named Ramesh and a cousin with the same name and your WILL states the below:
“My 2004 Mercedes S-Class car must be handed over to Ramesh”.
As owner of the car, you thought that by default it refers to your Son but your cousin being a devious person realizes the mistake and stakes a claim on your car. Obviously your WILL is ambiguous and so, there is going to be a lengthy legal battle and god only knows whose side will win the case. God forbid, what if your cousin gets possession of the car even though you wanted your Son to get your Car?
Had a Lawyer been present, he would’ve pointed out this flaw and suggested to you that you mentioned the fact that, the Ramesh here refers to your own Son.
Getting the Probate
The Probate is nothing but a copy of your WILL that is certified under the seal of the Court. The Executor, has to file a probate petition in the court of Law and get it. Practically speaking, getting a Probate under the current timelines as per the Indian Law works to somewhere around 1 year.
You might be wondering, do you need a Probate?
Of course yes. The executor cannot perform his duty of distributing your wealth unless he has been granted the Probate. The Probate will be granted only to the executor appointed in the WILL. The cost of getting the Probate includes legal fees along with stamp duty on the value of the property being distributed per the WILL. A point to note here is that the stamp duty varies from state to state.
Another important point reg. the Probate is that, in case of land or house party, the property will not be transferred to the name of the person inheriting it without the Probate and the Tax Paid certificate. This will create problems especially in cases where our next generation tries to sell the property that they inherited. Without the correct Probate, the prospective buyer may not be willing to buy the property because they may be suspicious about the properties origins or ownership.
Some Last Words about Making the WILL before we Wrap up:
• It would be a good idea to involve one doctor and one lawyer as your two witness. The idea is simple – a doctor signing as a witness means that you were mentally sound when you wrote the WILL and the Lawyer will verify the document and make sure you don’t make silly mistakes (Remember the Ramesh – Mercedes Car example from a little bit before?)
• None of the witnesses or their family members must be beneficiaries from your WILL. For ex: If your doctor is a witness and his son is like your son and you left him your bike, that will be illegal.
• Use good quality paper and pen to write your WILL. The document has to last the test of time, at least a few years.
• Keep your original WILL in a safe place like a bank safety deposit box. You can also make copies and store them separately. However don’t make many copies. One or two copies should be more than sufficient.
• Make sure you mention the date in the WILL. Without this, nobody will know which version of your WILL is the latest.
• Cleary mention the % share that each of your family members must get instead of the value. For ex: The cost of your house could be 10 lakhs today and could be worth 50 lakhs 25 years from now. So, you can’t say my sons must get 5 lakhs each. What about the remaining 40 lakhs?? Instead you must mention that my sons must get 50% of my house’s sold value
• Usually property that you inherited can be inherited by the direct descendants of the person writing the WILL. For ex: If you got your ancestral house from your father, who in turn got it from his dad, you can only leave it to your sons or daughters. No other family member or outsider can stake a claim on this property. Remember that Rights on inherited property is acquired by birth and not by WILL. So, your dads house can go only to your son and not to your favorite cousin.
I think we have covered almost everything you need to create your WILL. However, I am no Lawyer. So, if any of the points mentioned above is incorrect, please feel free to leave a comment and I will correct it.
Happy Writing your WILL!!!