Succession through Will

A Will is traditionally considered as the most commonly adopted tool for succession planning. In common parlance, a Will is a legal declaration of a person’s (“the Testator’s”) wishes regarding the disposal of his or her property after death. A Will is a document by which the Testator directs his or her estate to be distributed upon his / her death. It is also termed as Testament.

Even-though it is commonly accepted and widely known concept, there are so many Indian families who do not want to adopt such succession planning tool. Common myths around not making a Will are as under:

• Making a Will is not mandatory for succession planning;
• Merely nominating family member’s name can be enough proof for transferring assets in the name of family members;
• Making a Will is complicated and costlier process;
• Without Will, transmission of assets can take place very easily;

It is pertinent to note that all the above reasons are only myths and none of them are even partially correct. Not writing a Will has its own consequences and in most of the cases, beneficiaries are the ones who have to bear such consequences. In fact, it is always recommendatory to write a Will even if other modes of succession are adopted considering there would surely be assets which are registered in the name of the Testator and which are held by him/ her during their lifetime, until their death.

Considering death is uncertain, there is no fixed timing for making a Will. Accordingly, once a Will is created, one can still make amendments to the Will as and when the Testator wishes to do so. As per the Indian Succession Act, 1925, (“the Indian Succession Law”) the most recent Will of the Testator prevails.

Furthermore, the transfer of property under a Will does not attract income tax as well as stamp duty. However, a will also has certain inherent limitations, illustrated below:

• A Will can only be operational upon death of the Testator;
• Can only provide for the disposition of assets on a particular date (i.e. the Testator’s date of demise);
• Disposition under a will is not automatic, but takes place through the probate process;
• The probate process is prone to litigation;
• Potential exposure to estate duty.

Despite of the above limitations, it is always recommended to write a Will in one’s individual capacity. If all the corrective steps are taken in the preparation of a Will, then even if a Will gets challenged under the Indian Succession Law, one can still prove its authenticity.

Thus, even if registration of Will is not mandatory, it is always recommendatory to register the Will for the benefits as listed down below:

1. It implies that Will is verified by registrar and it confirms that the Will has been written by the Testator and authentic witnesses have attested the Will;
2. In times when the Will is challenged in a court, registered Will establishes the fact that it has been written out the free will and sound mental capacity of the Testator;
3. Probate procedure gets easier as a Will can be established as authentic.

One can definitely make life of claimant easier if a proper succession planning has been undertaken and provide ease as under:

1. Identification of ownership on all the assets and financial obligations gets identified and documented;
2. If a sudden fake creditor appears, one can definitely take recourse to written Will and avoid any harassment and take proper legal assistance;
3. The most trusted family member / your loved one’s gets their share from the wealth as desired by the Testator;
4. No need to apply provisions of the Intestate Succession Law and also not to undergo any painful procedures;
5. If Will gets challenged, registered Will can always be proved for its authenticity;
6. The Testator can appoint trusted executor(s) / Guardian(s) to take care of minor child / specially abled child;
7. Probate procedure becomes quicker and this disposal of assets to the intended beneficiaries becomes timely especially when they are already going through emotional turmoil.

As above are benefits, it is also precautionary to write / amend Will at every special occasion to ensure that the Will is updated and covers all the critical aspects that are necessary in the interest of beneficiary(ies). One way of amending a Will is by writing a New Will. One can specifically state that they revoke the previously written Will, whether registered or not registered. Another way of amending a Will is through Codicil. Codicil amends or modifies your current Will such that existing clauses in the Will are amended to certain extent.

As Will is written for the beneficiary(ies), it is important to identify and mention the names of each and every beneficiary on the Will. This would enable appropriate transfer of assets to the desired Beneficiaries. Indian Succession Law does not define any specific manner in which one must transfer the assets to their beneficiaries, while writing a Will. Accordingly, a beneficiary could be your immediate relatives, your extended family members, your well-wishers, your friends and even your servants and care takers. Also, it is possible to contribute to the charitable and social causes through a Will.

When the time arrives for disposal of wealth to the beneficiaries, probate procedure needs to be followed. Probate is a process that an appointed executor needs to apply, in order to transfer the wealth of the Testator in the names of beneficiary. Once, executor obtains probate from the jurisdictional Court, it is implied that Will is official. Upon Court granting the Probate, original Will needs to be submitted to the Court and probate certificate is granted to executor along with a copy of Will. Executor gets rights to dispose off wealth in the manner as state in the Will. Thus, succession through Will becomes most smoother and effective with minimal costs.

There are different ways of writing a Will, depending upon the wealth and desire of the Testator to dispose off the wealth of the Testator. Few such examples are as under:

• Simple Will: Simple Will is executed when it simply mentions transmission of wealth to beneficiary/(ies), allocation of each and every asset, without going into details of such each and every asset. It simply provides a summary of details, most suitable for people who do not wish to wait for collecting all their asset/ details from various sources / files / consultants. Many individuals also do not wish to mention full details about all the assets they own. It is simple and quicker to make within minimal costs;
• Standard Will: Standard Will is executed when each and every details of all assets are mentioned in the Will. Standard Will writing requires maximum details of assets (without mentioning any value) for which few details may have to collect from various online accounts / files / consultants. Standard Will suits to majority of people since they prefer to mention maximum details about all assets. Also, Will may contain clauses in relation to conditionalities attached to the transmission of assets to beneficiary/(ies). Additionally, details of appointment of executors and / or Guardian is also mentioned. It is 100% proof of holding of assets and liabilities of the Testator and also refrain any fraud claimant or creditor’s claim. Also, it helps in identifying and claiming assets as mentioned in the Will;
• Joint Will: In India we have seen most families keep asset ownerships in the joint names (mostly co-owned by husband and wife). As per the law, the joint assets are owned by both individuals hence both individuals i.e. husband & wife should make a Will – either two separate Wills or one single Joint Will. In Joint Will, property may be nominated to the surviving spouse and upon death of surviving spouse to the kids. Similar arrangement may also take place when assets are held jointly amongst Father-son or Mother- son or any such similar combination. It is easier to execute and provides security to the surviving beneficiaries without any hassle;
• Mirror Will: Mirror Will is conventional and the most popular method of Will writing when husband and wife both write their separate Wills under which they both bequeath their wealth to each other in a reciprocal manner. These are two separate customised Wills of Husband and Wife giving (bequeathing) properties to each other. It is ideal for husband and wife when they wish to give everything to their spouse and allow spouse to decide further course if one partner pre-deceases.

Above are few examples of Will writing and it is very easy and effective to execute the Will. Writing a Will is one of such corrective steps towards securing future of the intended beneficiary. One must take that one small effort in making Will in a timely manner. This will not only save costs later when inheritance gets triggered, but also saves a lot of time from going through painful and long procedures that beneficiaries have to undergo at a later point of time.