Why writing a will is essential for estate planning


Today, succession planning has become essential for people from all walks of life. Typically, one possesses movable financial assets in the form of cash in savings accounts or term deposits, or cleared amounts in foreign bank accounts; securities held in portfolio management services, investments in mutual funds, bonds and other debt securities, stocks, etc. Also, one can have real estate in the form of commercial, agricultural or industrial land and residential units such as houses, apartments, etc. .

Nominated vs. Will

By law, the agent is the trustee. Thus, whoever is appointed as mandatary is deemed to be the trustee of all the legal heirs. The position of the attorney is fiduciary and critical because the attorney holds assets for all legal heirs. Most people misinterpret this provision by assuming that once a nominee is nominated, the nominee will receive the assets as the sole beneficiary. This is not the right position.

The appointment helps the candidate to receive the property hassle-free without having to go to court to obtain the inheritance certificate or the verification of the will. It is important that the candidate is mentioned as beneficiary in the will.

The will must be executed in accordance with the laws and regulations applicable to the respective religion and domicile. If a will is not executed and a person dies intestate (without a will), all legal heirs will receive an equal share under Hindu law. Thus, by executing the will, differential rights are created for the legal heirs.

In the will it can be said that all the assets will go to the wife only whereas if there is no will then for a Hindu individual the assets will go to all the legal heirs equally, that is i.e. mother, wife and children.

Points to note

The will is an important tool for succession planning. Anyone 18 or older and of sound mind can execute a will.

The will must be properly signed with two attesting witnesses. Witnesses can be family members, friends or third parties, but beneficiaries should not be witnesses. Often a will is written without complying with legal requirements, which puts the beneficiary at a serious disadvantage. It’s like a gun without bullets.

No stamp duty is applicable on the Will and registration with the Under Registrar of Insurance is not required. Will registration and/or videography are suggested on a case-by-case basis and depending on the relationship with the legal heirs and the possibility for any of the legal heirs to create a potential dispute.

Anyone can write the will themselves, even by hand. A will must clearly state how the assets will be distributed and to whom.

The person who executes the will is called the testator, who has the option of appointing an executor under the will. The executor is the person who realizes the intention of the testator and distributes the assets to the beneficiaries after completing all the required formalities. If all of these things are taken care of, a challenge to Willpower is difficult to complete.

You can change your will as many times as you want during your life. In addition, all the property that is mentioned in the will can be used by the executor of the will in any way he wishes before the death of the person who made the will. And, the Testament does not come into play until the death of the latter.

In some Indian states, it is mandatory to have the will approved by the court and if the will is properly executed and not contested, such an order is received within about a year. The easiest way to manage the estate is to make appropriate appointments and leave a will.

Rajesh Narain Gupta is Managing Partner, SNG & Partners, Advocates and Solicitors.

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