1. Selecting the right heir: Where there is a ‘will’ there is a way

Selecting the right heir: Where there is a ‘will’ there is a way

During your lifetime you are in control of how you want to distribute your assets, to whom you want to distribute and in what proportion you want to.

By: | Published: February 2, 2016 12:19 AM

During your lifetime you are in control of how you want to distribute your assets, to whom you want to distribute and in what proportion you want to. But in your absence too, you would want to be in control of distribution and for that you need to have a will in place.

What is a will?

A legally enforceable declaration of how a person wishes his or her assets to be distributed after death made by a person of sound mind and who is not a minor. Only what you own or self-earned (if inherited, then only your share ) can be part of a will. In absence of a will, respective succession laws will govern.

Why is a will required?

Today, many of us have accumulated assets in various forms, in real estate, financial instruments, precious metals, etc. After the economic boom of the nineties, the assets accumulated and the value of the existing assets have gone up manifold.

And if you are bequeathing the asset, through a will, you are more certain, that the asset will be handed over to the identified beneficiary in the will. A will serves a variety of important purposes. It enables a person (known as Testator) to select his heirs rather than allowing the operation of law to choose the heirs.

A will allows the Testator, to decide which individual (Executor – Legal representative of the Testator could best serve as the executor of his estate, distributing the estate fairly to the beneficiaries while protecting their interests, rather than allowing a court to appoint a stranger to serve as administrator.

A will also safeguards a testator’ right to select a person to serve as guardian to raise his young children in the event of his death. It is always recommended to include a ‘residual clause’ to cover what is not specifically mentioned or acquired later, in a will.

Characteristics of a valid will

A will clearly stipulates beneficiary (also called as legatee) of the will, with a list of moveable and immoveable assets. A will must be signed (each page by the testator) and attested by two witness, in each others presence. With the execution of any subsequent will the previously executed will stands automatically cancelled. The intention of the testator must be to execute a will.

A will comes into operation only after the death of the testator. A will can be revoked by the testator at any time during his lifetime as long as he or she is competent enough to make a decision. Under the Indian law an instrument of will need not be registered. However, after the death of the testator, to make the will operative a probate issued from a court of competent jurisdiction (if property owned in the cities of Chennai, Mumbai or Kolkata ) needs to be acquired.

Intestate

When a person dies without a will, she is said to die intestate. And in such a case, based on the religion of the intestate person, the estate will be distributed.

The Hindu Succession Act, 1956 is applicable for the Hindus, Buddhists, Jains & Sikhs. The Indian Succession Act, 1925 will be applicable for Christians and Inter religious marriages. Parsis have their own laws. For Muslims, it is based on religious texts (Shias and Sunnis have different inheritance laws).

In the Hindu Succession Act, in case of a Hindu male – if he dies without a valid will his wealth will be distributed as per the provisions of the Hindu succession law first to Class 1 Heirs equally and if there are no Class 1 then to Class 2 Heirs.

If a Hindu female dies without writing a valid will then her own wealth will be distributed equally among the son and daughters and the husband. In their absence, to the heirs of the husband. If the above beneficiaries are not available then to the mother and father.

Miscellaneous

Personnel in armed forces engaged in war, are permitted to make a Privileged Will.

It’s an informal will which does not comply with the guidelines of a valid written will, but nevertheless be valid. A privileged will is usually written down but can even be an oral declaration. At times of war, (as declared by the government), there is not enough time to follow the process. In this instance, the testator can orally dictate to his co-soldier and have the will executed in the battlefield itself, for future action.

Myths in making a will – decoded

A will has no prescribed format or template. A plain white paper can be the document and Stamp paper is not required for making the will. A handwritten (called holographic) will in simple layman English/local language can be the medium of recording and moreover, registration of will is not mandatory.

Do not shy away from making a will. It is your right to ensure that the estate is distributed as per your wishes and design, at all times, more so in your absence.

The writer is founder and managing partner, BellWether, Advisors LLP

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