For an individual, it is very much essential to undertake an estate planning. The word estate here means every asset the individual owns: both fixed as well as current, including house property, vehicles, all types of bank accounts, investments, LIC policies, among others. Estate planning implies legal planning with precision of inheritance of these assets after death of the person. This means the person through a set of legal means is clarifying as to whom various assets / property would go after his / her demise.
It is an important step of financial planning of an individual in order to avoid any future complication / confusion after his / her death as to how assets / property would be shared.
Writing a Will:
Under the above backdrop, writing a Will becomes crucial as it is the starting point. A Will is the wish of an individual how the assets / property on his / her death should be distributed among heirs / beloved ones. In case a senior citizen has some reasonable amount of property / assets and has a number of legal heirs, it is always advisable for the person to write a Will.
Some Legal Terms Used in Parlance of Will:
Testator: Person who is writing his Will. While writing Will, the Testator (the elderly person) must state in explicit words that he is writing the Will of his own “free will,” and he / she is in sound mind.
Executor: Person who would ensure implementation of the Will after Testator’s death.
Witness: These individuals play an essential role in testifying the document at the time of execution. They are also needed to testify that the Testator was of sound mind at the time of Will’s writing and has written his “Free Will” implying that the Testator was not threatened or forced to write it.
Beneficiary: Person or Trust, named in the Will, who will receive the assets’ possessions.
Probate Court: It is a part of Judicial System that looks into wills, estates, custodianship, etc. After the death of the Testator, the choice becomes functional, and a Probate Court is assigned to actuate the Will. The Probate Court relies on the Executor to represent the deceased for these matters and ensure that the Testator’s last wishes are fulfilled.
Difference between Nomination and Will: The main difference is that nomination is the right to receive and hold the property and assets. In contrast, the Will ensures complete possession of the property and assets to beneficiaries. In the Indian context, Will supersedes nomination as well as all the Indian Succession Acts.
Intestate: A person who has died without a Will.
Format of a Will:
There is no specific format of a Will. It can be written by the person (Testator) himself or through a lawyer. The Will usually contains following points:
1. That it is the Testator’s last Will or Testament and should contain all details of Testator.
2. It should include a list of the assets that are wholly owned by Testator. A detailed description of the same would be included in the schedule annexed to the Will.
3. Details of the Executor, including age, residence and relationship with the Testator.
4. Details of the beneficiaries.
5. Statement that “with free will and volition and sound state of mind,” the property is being bequeathed.
6. That the Will shall come into force after the death of the Testator and is revocable at any time as per the Testator’s wish.
7. Testator’s signature, along with the date and place of execution of the Will.
8. Signature and addresses of the 2 Witnesses.
Registration of a Will:
Not mandated by law but preferred as it gives some sanctity to the instrument.
Amendments to the Will:
A Will can be amended / revoked anytime during the life of the Testator. The only version of the Will that is taken into consideration by the Probate is the most current one in existence at the time of death of the deceased.
As discussed above, Will is the only legal document that gives an authority to the Executor to help in distribution of the assets / property of the deceased person as per his / her last wish. It reduces, if not minimizes, conflict / confusion in the family; absence of a Will might result in legal dispute, if there are adequate property left behind. Therefore, we suggest that all elderly people should try to write a Will while they are agile and strong, both physically and mentally. They may take help of a friend or legal counsel, if need be.
Dr A K Sen Gupta, Co-Founder and Chief Trustee of My Retired Life Foundation (MRLF). He may be contacted at email@example.com or 9821128103.