Where there is a 'WILL'...

Kavitha Menon

If one dies intestate i.e. without a will, then ones assets are devolved as per the applicable personal law. The legal heirs need to apply to court and go through very lengthy documentation. Based on the laws of succession that are diverse and complicated, the property will be divided between legal heirs. Children, spouse and relatives can also stake claim to the property and in the case of large stakes lengthy legal battles ensue.

It's a common belief that appointing second holders or nominees in various assets will ensure that the property passes to such second holders/nominees. In the eyes of the law, a nominee (including a nominee appointed in insurance policies) is a trustee and he need not necessarily be a beneficiary to a will. He or she is merely a caretaker and the right to the property passes by will or if there is no will, under the personal law of the deceased. Such nominee will be legally bound to transfer the nominated property to the beneficiary of the will. If there is no will, he will have to transfer to the legal heirs. The same is true for a second holder as well except in the case of property where the second name in the sale deed is owner of 50% of the property.

The process of making a will is fairly simple. Here is how:

1) Request for two witnesses, one preferably a doctor. Needless to say trustworthy people younger than you should be chosen.

2) There is no prescribed format to prepare a will and it can be any language. List out your assets and plan on how they need to be distributed amongst your heirs and pen it down. It's that simple. No ancestral property can be assigned to any person. All rights on inherited property are acquired by birth. Hence there needs to be a distinction between ancestral property and that which you have accumulated in your lifetime.

3) Appoint an executor to the will. The executor is a trustworthy person who will be your representative, responsible for managing the properties and ensuring smooth transition to the heirs.

4) The witness must attest the document in the presence of each other and yourself.

5) Register your will. It is always preferable although not mandatory

There is no stamp duty involved in the execution of a will and hence it is practically cost free. Making a will is just as important a part of financial planning as is any other. Don't be under the wrong impression that you should wait till you are a certain age before making a will. If your net worth i.e. Assets less liabilities is a positive number then you must prepare a will, no matter what your age. You can always revise the will from time to time. For newer assets acquired, you can simply write an additional document, technically termed as a codicil and add it to the last will. The codicil also needs to be attested by two witnesses, similar to the process mentioned for Will. If there are major changes, you must make a new will and explicitly revoke the old one i.e. the new will must mention that the old will stands revoked. If such explicit revocation is not mentioned it can lead to inconsistencies and potential legal contests. You must also physically destroy the old Will.

Once you have made a will, one more exercise that needs to be done is the arrangement of nominees and second holders in various assets, consistent with the will. This will help avoid unnecessary paperwork and smoothen the transition process. For example if you wish to have a residential apartment to go to your wife in your will, but have your brother as a nominee in the society records, there will be an inconsistency that can cause avoidable legal complications.