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September 20, 2020

Top 10 reasons to make a Will

by CA Shivam Jaiswal in Compliance Law

Top 10 reason Make a Will

The economic impact of the 2020 coronavirus pandemic in India has been largely disruptive. The lockdown though necessary has led to a disastrous impact on the economy. As COVID-19 left many of us working from home surrounded by our families and loved ones, it was inevitable that we started to think about how well we are prepared for our futures.

A will is a legal declaration a person makes about the way they want their property managed or distributed after their death. In simple terms, a will is a legal document that dictates how you want your assets to be distributed after you die. Although a will is a legal document, there isn’t any prescribed form it must take. For instance, you don’t need to write a will on stamp paper and it can be either typed or handwritten. However, a handwritten will is preferred as it is more difficult to reject. According to the Indian Succession Act of 1925, anyone who is of sound mind and who is not a minor can make a will.

What is probate?

If you die with a will in place, the executor named in the will typically presents the will to the local clerk of court and asks the court to authorize the executor’s administration of the estate.

This process of presenting the will and administering the estate is called the “probate” process. The probate process generally is fairly informal – the executor presents the will, is authorized to administer the estate, determines the beneficiaries and creditors entitled to the money or other property, makes the distributions, files any tax or probate documents with the various government entities, and closes the estate, all within the proscribed and monitored timeframe.

If the executor sees potential problems with the will or foresees a will contest, he or she may request a more formal process, but this rarely is needed.

If you die without a will, then the local court must monitor the estate’s administration even more closely. This is because the court (not a will) provides all of the authority to act. The administration and closing of the estate generally requires more court involvement, often more publicity and definitely more red tape.

What are the essential elements of a will?

To have a legally valid will one needs to have following clauses in their will-

  • Personal Details – one has to clearly give his personal details in the will. One has to specify details like son/ daughter of, residential address, age, date of birth, etc.
  • Declaration of Date – the date on which the will is being prepared has to be mentioned. It helps the court to identify the last and the valid will, in the case of multiple wills.
  • Validate Free Will – one has to clearly state that he is making the will with his free consent. He has to specify that there is no undue influence or coercion or pressure under which he is writing the will.
  • Provide Executor’s Details – an individual needs to nominate an Executor in his will. The Executor is the person who is responsible for executing the will. Along with providing the executor details, the testator should add a clause describing what would happen if executor dies before the testator.
  • Details of Assets– one can dispose of movable and immovable property through a will. The testator has to give details of all kinds of property that he wants to dispose of. In the case of immovable property like house, land, etc. he has to give a proper address. In the case of movable property like bank deposits, mutual funds, share, etc. he has to give authentic identification numbers. The testator should also specify the mode through which income generated from these assets would be distributed to the beneficiaries.

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  • Liabilities of the Testator – testator should specify any liability that he owes and the mode of settling that liability through his assets. He should also specify the mode to settle probate charges and executor fees.
  • Name of the beneficiary (ies) – the testator has to mention the name and some personal details of the beneficiary so that the court can identify the individual. The testator can describe the relation like my wife, my son, my daughter, etc. In case, where the beneficiary is a minor, the testator should specify the legal guardian of these minors. In case, where the beneficiary is a daughter, the testator should specify different situation regarding her marital status.
  • Signature – testator has to sign the will at the end.
  • Signature of Witnesses – there is a requirement of getting the Will tested by two witnesses. The testator has to specify the father’s name and the residential address of the witnesses.
  • One can also include addition to make amendments or to alter the will. The testator can change the beneficiary, executors, assets, liabilities, etc. by adding codicil in the will.

Including all the above-mentioned elements would reduce the chances of ambiguity in the will.

Given below are the top 10 reasons to have a Will

1. Protects your Estate

It is important that your estate is protected as best it can be after your death. A will is a legally binding document that lets you determine how you would like your estate to be handled upon your death. If you die without a will, there is no guarantee that your intended desires will be carried out. Having a will helps minimize any family fights about your estate that may arise.

2. One can disinherit individuals who would otherwise stand to inherit

You can keep your assets out of the hands of people you don’t want to have them (like an estranged relative). Most people do not realize that they can disinherit individuals out of their will. One may disinherit individuals who may otherwise inherit your estate if you die without a will. Because wills specifically outline how you would like your estate distributed, absent a will your estate may end up on the wrong hands or in the hands of someone you did not intend (such as an ex-spouse with whom you had a bitter divorce).

3. A will establishes legal guardianship of your children if they are still minors

A will allows you to make an informed decision about who should take care of your minor children. If the same is absent in a will, the court will take it upon itself to choose among family members or a state-appointed guardian. Having a will allows you to appoint the person you want to raise your children and make sure it is not someone you do not want to raise your children.

4. To avoid a lengthy probate process

Contrary to common belief, all estates must go through the probate process (Probate refers to the process whereby deceased debts may be settled and legal title to the deceased property is  transferred to heirs and beneficiaries), with or without a will. Having a will, however, speeds up the probate process and informs the court how you’d like your estate divided. Probate courts serve the purpose of “administering your estate”, and when you die without a will the court will decide how to divide estate without your input, which can also cause long, unnecessary delays.

5. Minimize estate taxes

Another reason to have a will is because it allows you to minimize your estate taxes. The value of what you give away to family members or charity will reduce the value of your estate when it’s time to pay estate taxes.

6. You decide who will wind up the affairs of your estate

Executors make sure all your affairs are in order, including paying off bills, canceling your credit cards, and notifying the bank and other business establishments. Because executors play the biggest role in the administration of your estate, you’ll want to be sure to appoint someone who is honest, trustworthy, and organized (which may or may not always be a family member).

7. Make gifts and donations

Many people want to leave a positive impact on the world after they pass. And a great way to do this is to support the charities or causes you love most. When you write a will, you can preserve your legacy by leaving a part of your estate to a charitable organization. 

The ability to make gifts and donations through one’s will is a good reason to have a will because it allows your legacy to live on and reflect your personal values and interests.

8. A Will May Reduce Family Conflict

The division of an estate after death comes with many emotions. The slightest differences can result in hurt feeling and accusations. As divorce becomes more complex and blended families more common, dividing assets has become even more complicated. A will that clearly lays out your wishes may reduce conflict and speculation over what you “would have” wanted. Making a will can give you peace of mind and prevent your family from fighting over your possessions.

9. A Will can be amended any time

If your marital status changes, or you decide you’d like to update the names of your beneficiaries, your Will can be formally amended at any time. You can simply draft a new Will or attach a Codicil (an addition or supplement that explains, modifies, or revokes a will or part of one) to your existing Will.

10. Save time, money, and stress for your loved ones

Almost all estates have to go to probate court to start the legal process overseeing the distribution of assets. But when you don’t have a will, this process can get especially complicated. The court has to name a personal representative to administer your estate. And this can be time-consuming, expensive, and even contentious for your loved ones. One of the top reasons to have a will is to streamline this probate process. When you have a will, you can choose the person you want to handle your estate, making it easier for your loved ones.

Procrastination and the unwillingness to accept death as part of life are common reasons for not having a will. Sometimes the realization that wills are necessary comes too late – such as when an unexpected death or disability occurs. To avoid the added stress on families during an already emotional time, it may be wise to meet with an estate planning lawyer to help you draw up a basic estate plan at the minimum, before it’s too late.

Everyone should have a Will, no matter their age or circumstance. Especially at a time this when the word is facing a pandemic, it is important we all feel secure that our families will be suitably cared for when the time comes and creating a Will is a way to do this. It is important to review your will every five years to ensure that it’s up to date and still reflective of your future wishes.

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