WHY LET THE GOVERNMENT DECIDE WHAT YOUR CHILDREN GET?

WHY LET THE GOVERNMENT DECIDE WHAT YOUR CHILDREN GET?

Najma Shaikh

Adv. Najma Shaikh

Partner
LawLeo.com
Fort , Mumbai

Posted on: 18th Jul, 2016

Here is a quick question: What is it that you can prepare in the next 10 minutes that will positively affect the future of your family many years from now? While the answer is fairly obvious given the nature of this article, we will wait for you to read through before revealing the answer.

 

The term ‘Will’ is a buzzword today. The number of people who have made their Will continues to increase every day. By this article, we at LawLeo.com hope to persuade you to have a Will made for yourself in the coming days (yes, we know you are still young, quite healthy and do plan to make a Will in a few years anyway; but more on that in a minute.)

 

ARE WILLS ARE IMPORTANT?

 

Let’s use the next three minutes to imagine you a few years from now:

 

You have progressed in your profession and have finally been able to purchase a spacious, comfortable apartment in the city. The swanky car you’ve always dreamt about is sitting in your garage and as you read the newspaper headlines on a lazy Saturday morning (“Markets at an all-time high!”), you smile as think about the value of your investment portfolio, carefully built over the last many years. That afternoon, over lunch, you and family finally decide to do that cruise that has been the topic of discussion for a few days now. Everyone’s happy. Things simply can’t be better.

 

Unfortunately, that Saturday evening, you die. A road mishap; the sort of accident we read about in the newspapers every day. Let’s see what happens to your family.

  • First: the apartment. Your spouse, who was the co-owner of the house, is now required to pay off the bank loans. Fortunately, despite your reluctance at the time, you had to compulsorily purchase life insurance against the home loan; the insurance company pays off the home loan. But the respite is short-lived. While your brother had nothing to do with your apartment, he now claims your share of the apartment, citing himself to be a blood relation. He writes to the housing society with his claim and instructs them to add his name in place of yours in the ownership records. Fortunately, the society refuses and asks your spouse to get a court order for clearing up the matter. The brother, in the meanwhile, gets a court order stopping your family from selling the property till the matter of ownership is decided. Your spouse visits a lawyer who advises a settlement with the brother rather than locking up the property in a lengthy legal battle.
  • The bank account standing in your name - flush with funds till today morning - cannot be accessed by your family. This is also true for the depository account, where all your shares and mutual fund investments are deposited. The bank requires a court order before any withdrawal may be made. Your lawyer cautions your family about the length of time it may take to get such an order and gives an indication of his fees and costs.
  • Despite having an interested buyer, your family is unable to sell off your expensive car, as the regional transport office notes that the car registered in your name. The officer asks your spouse to submit a court order clarifying who has inherited your car, without which he cannot permit the transfer.

 

Eventually, a few years later, your family succeeds in dismissing your brother’s claim and in having the banking relationship transferred to your spouse. But it has taken years of waiting and numerous visits to the lawyer’s office and the court. The car was sold off a few years later for a price far less than what was originally available. This hardship and trouble to your family would have been avoided had you signed a two-page document during your lifetime – your Will.

 

Simply understood, a Will is a document which says how you want your assets distributed after you die. Despite being a legal document, your Will can be written in simple English (or any other language, for that matter) and on plain paper (a stamp paper is not required). Since you had written in your Will how you wanted your assets to be distributed, the process of establishing ownership of assets after your death is now simple. Your family could simply submit a copy of your Will to the housing society, the bank and the regional transport office to get the respective processes completed within a few working days instead of waiting for years. It is important to note that your Will would come into effect only after your death and making of your Will would not restrict you from dealing with your estate during your lifetime.

 

WHAT TO WRITE IN A WILL?

There is no prescribed format for making a Will in India. However, for the sake of clarity, a Will is divided into 4 parts: the introductory, the assets, the distribution and the execution. The Testator (the person making the Will) introduces himself or herself, lists down the assets that are to be distributed, mentions the persons to whom each of thoses assets are to be given and signs the document at the end. The Will also names a person who is responsible for ensuring that the terms of the Will are fulfilled after the Testator’s death. This person is called the Executor.

 

One of the greatest disadvantages of not making a Will is that the division of your property is carried out not as per your wishes but as per the provisions of the personal law applicable you (in India, this depends on your religion). Using a Will, you may give your belongings to people not a part of your family (gift your old pictures to a school friend, your stamp collection to a fellow philatelist, a sum of money to a loyal servant or a donation to your alma mater). Your Will could also be used to exclude some of your family from a part of your estate. As long as your intentions are clear and you follow the rules listed below, the court will treat your Will as a legal document. Interestingly, the shortest known legal Will is of one Mrs. Bimla Rishi of Delhi, India, which simply reads, "All to son" (although this is legally binding, we suggest to not be so frugal with words!) And if your wish to change your will at any time in the future, you can do so. The desired amendment can be written on a paper properly dated, signed and witnessed. This document is called a Codicil and it acts to amends the Will as required.

 

THE RULES OF MAKING A WILL

  • State the title of the document to ideally be ‘LAST WILL AND TESTAMENT’.
  • Put the date of signing on the Will. In the event of there being multiple Wills, usually the latest Will is considered final.
  • Clearly identify yourself as the maker of the will and use clear unambiguous language throughout the document.
  • State that are of sound mind and that you are acting freely and willingly.
  • Mention your religion and age (“I, Raj Malhotra, Hindu, aged about 34 years, Indian citizen, …”)
  • Declare that you have revoked all of your previous Wills and Codicils.
  • Serially number each page of the Will.
  • Carefully state your assets in as simple terms as possible (instead of “My fixed deposits with bank ABC, PQR and XYZ totaling to Rs. 2 Crore in principal to my wife”, you may say “All my fixed deposits to my wife”). Also, assets such as gold, silver and equities tend to fluctuate over time. In such cases it is advisable to mention them in in terms other than their monetary value
  • Mention a disinterested person as an Executor of the Will. There can be more than one Executioners of a Will.
  • Sign the Will on each page in the presence of at least two disinterested witnesses. The witnesses should attest that the Will was signed by you in their presence. They do not have to know the content of the Will.
  • Your signature must be placed at the end of the Will, else any text following the signature may be ignored.
  • Certain assets such as tenanted premises, ancestral property, HUF property and any property that is not in the name of the Testator cannot be bequeathed by a Will.
  • With the creation of digital assets, we advise clients to bequeath their personal email accounts and other digital properties under their Will, to ensure of information.

 

You do not have to retain a lawyer to draw up your Will. However, in our experience, home-made Wills are susceptible to technical defects (such as naming one of the beneficiaries as the Executor). As you will not be available to correct any technical deficiency or error in expression of your Will after your death, the scope for mistake is very little and often expensive.

 

REGISTERED WILLS

Registration of a Will means that the Testator signs the Will in the presence of a notified government officer, who registers this fact. It is not compulsory to register a Will – a non-registered Will is valid in court. However, registering your Will has many advantages: foremost, it removes all doubts on the authenticity of the Will as the identity of the Testator is verified at the office of the registering authority and a copy of the Will is saved in the government archives. You may also choose to leave your Will in the safe custody of the registering authority in a sealed envelope. This prevents any possibility of tampering with the important document. The Will is handed over by the registering authority to the Testator himself or to his executor on production of the Testator’s death certificate. By the way, while online legal portals merely help you draft the will (signing it and getting it attested is your responsibility), at LawLeo.com we help you register your will as well.

 

PROBATE OF A WILL

Probate of a Will is a process in which the Will certified by a court as authentic. In probate proceedings, the court grants an opportunity to all the legal heirs of the Testator to express their objections, if any, to the Will. After hearing all the parties, the Court issues a probate letter, which is treated as conclusive evidence of the authenticity of the Will.

 

To conclude, a Will is the most important document that you will ever write (this, of course, is also the answer to the riddle above). This simple document ensures that the people for whom you’ve worked hard your entire life get to enjoy the benefits that you want them to have.

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