How to make a Will

 

🔼HAVE YOU MADE YOUR WILL?🔼

IF NOT, THEN READ ON ⏩

In this article I will discuss

• What is a Will?
• Who should make a Will?
• Why make a Will?
• Is it difficult to make a Will?
• What are some reasons that people don't make a Will.
• Meaning of a few terms like 'Intestate', 'Nominee' etc.
• Components of a will.
• What happens if you die intestate (means, without making a Will). 
• Advance Medical Directives or Living will.
• I also provide a template for a will, to help avoid procrastination 😊 
• What to do with the Income Tax account after a person is no more.
• I have also given a couple of examples of the trouble the family had to undergo, because there was no will in place.
• I have given an extract from the Act, about Class 1, Class 2 heirs at the end of this post. 
• This blog is relevant for the Indian rules, but some general points might be useful too.
• This blog cannot be considered as any kind of legal advice, and do take the time to consult your attorneys.
• There are links to certain articles in the blog, that I found to be useful. In case any of the owners of the materials referred to wish to be removed from the links, please do let me know and I will do this.  

Read On...

Introduction. Many of my contemporaries and I are approaching the age bracket where people start calling us ‘senior citizens’. I frequently emphasize during conversations and meet-ups to everyone around that it is extremely important to make a Will. It does come as a surprise that despite otherwise being financially secure and independent, not many of us have made a Will. Our parents, in-laws too are already at the age where it is very important to make our intent clear. A Will is how we can ensure that when we pass on, our loved ones do not have too much paperwork to do, while respecting our wishes as to the disposal of our estate. This blog is an attempt to explain the reasons that each one of us absolutely needs to make our Wills. I will also try to dispel many misconceptions that are common and often cited to avoid making a Will. I’m not a legal expert, so do make your own efforts to verify if there is anything which is incorrect, or something that needs to be added. I will appreciate your comments in any case, and especially if there are any additions / corrections that you suggest – it will only help more people.

Who should make a will? Anyone who has any assets (money, fixed assets, movable assets) should make a will. This means that the moment one starts earning or has a reasonable amount of assets transferred through gift, inheritance or otherwise, one must make a Will. Even your children should be instructed to make a Will at the earliest opportunity after they start earning, more so because they stand to inherit your estate. 

Women that have chosen to remain homemakers for whatever reason, must make a Will to include everything that she is expected to inherit - all the estate (home, investments, jewellery from in-laws or parents). Do not think that since you don't own anything, you do not need to make a Will. A detailed discussion with the family is important for this.

As a Naval Aviator, each time I got posted to a new unit I had to make out a Will, (or hand over the earlier one), and everyone's Wills were stored in a file in the office. That was my start point.

Why make a Will?   

• A Will is crucial for ensuring your assets and property are distributed according to your wishes after your death. In other words, you have full control.
• It also helps protect your loved ones from potential legal and financial complications. 
• It allows you to name guardians for minor children and specify how your assets, including digital assets, should be handled. 
• Without a Will, your estate will be distributed according to the laws of your country, and this may not align with your intent or wishes. There will be multiple legal heirs and multiple legal tangles. You should never burden your loved ones with this task. 
• As we go along, I’ll answer some questions that often come up about assets. 

What happens if a person dies without making a Will? A person who dies without making a Will is said to have died ‘intestate’. In such a case, the inheritance laws of the land, or a particular Succession Act will be applied. There are a lot of legal tangles to be negotiated through court rulings, which takes a lot of time as well as money in lawyers' fees and court charges. If you are lucky, then it will take only about 18-24 months at the least. The rules are different for different religions as per Indian Law.

Is it difficult to make a Will? The short answer is a “No”. 

• In its simplest form, a Will is a handwritten note, clearly giving the ‘intent’ of the person as to how he/she wants her assets to be distributed after her demise. 
• To make it legal, the Will needs to be signed by two witnesses (that are not beneficiaries)
• A doctor’s attestation that the maker of the Will is mentally sound. This is essential in the case of senior citizens, and those that are known to be suffering from prolonged illnesses or conditions like the beginning of amnesia, dementia etc.
• To ensure the paper of the Will is preserved properly for longer, you should make it on ledger paper (or legal paper / greenish paper available at the local stationer) but this is not mandatory.

Those that are convinced they are going to make a Will, and want to skip the rest of the explanation can visit the page for a template here but I urge you to read this post for any inputs you may like to hear about. Please also post your comments - no need to sign up. If you like, you can use your google log in to comment or else comment as anonymous. 

Common reasons (or excuses, if you like) for not making a Will.

·           Ignorance. Most of us believe that the wife is automatically entitled to everything that stands in my name or joint name. This is incorrect, and the Hindu Succession law is very clear on this point. If a male Hindu male dies intestate, then the estate is divided equally among all Class 1 heirs. The list is quite large, there is extensive paperwork, and remember that the wife won’t get ‘everything’. The rules for a woman dying intestate are slightly different, and possibly less detailed.

·           It is too much effort, or it costs too much. In reality, there is no cost to making a Will. If you register it, the cost is about two or three thousand rupees. The agent that handles sale and purchase of flats will be able to do it for you. 

·      There is a news article there is an initiative to help senior citizens register the Will at home in Pune. Here is the link to the article .

·       Hence the correct way to transfer the property is only via a Will and nomination - this happens only after the person dies.

·          What Me Worry?  Why should I worry, in any case I won't take anything with me after I die, let my children sort it out. This is such an unfortunate attitude.

·           Suspicion: 👀👀 Why are my children or son-in-law insisting I make a Will – are they after my money? Hence – let the family sort it out after me !!

·           If I make a will bequeathing the house to my child(ren), I will be rendered homeless. 

• This is  completely wrong. The Will only states what happens to the estate after you die. 
• You remain the owner of the home as long as you are alive and nobody can make you move out.
• It is inappropriate to actually transfer a flat to anyone else while you are alive. In that case, you will no longer be the owner and can be asked to leave. 
• Never transfer your ownership of the house while you are living in it out of any feeling of love or affection - put it clearly in the Will, and let the person know that he is a beneficiary if you like. There are enough cases where the children have indeed told the parents to leave the home, only because they transferred the home to their children while still alive.

·           Emotional reasons – I am fully okay, and nothing will happen to me, so why should I make a Will?

·         I need to do it on stamp paper, or I need to get is registered, so it is too much effort. A Will needs to be made on a blank paper, not a stamp paper. 

·           And many more….

Some clarifications on nomination and bequeathing of assets. 

Commonly used terms:

1. Beneficiary: Individuals (or entities) specified in the Will to receive specific assets or inherit a portion of the estate. 
2. Testator (Testatrix): The person who makes and signs the Will is the testator male or (female). 
3. Probate. A will that is certified by a court or competent authority to be genuine and the last Will.
4. Administrator. As someone who is appointed to manage a deceased persons assets if there is no Will.
5. Codicil. An amendment to the will, or an addition to the Will.
6.  Executor (Executrix): The person responsible for carrying out the instructions specified in the Will and settling the testator’s affairs. However, the Executor is not legally bound to do all the paperwork, and will only need to intervene or assist if the beneficiaries are physically unable to do the running around, or there is a dispute in the interpretation. You could insert a clause for a fee to the paid to the Executor if you like to.

·           A Nominee is a person(s) that have been named by the owner to take possession of the property, monies, bank accounts etc and is not automatically the beneficiary. Nomination simplifies the transfer of assets, because the responsibility of the bank, housing society, etc ends when the nominee stakes claim and transfer is complete. The nominee is legally required to then complete due process to locate and transfer the assets to the legal heir. If there no Will exists,  there will be multiple heirs as per the law of succession. For example, upon a husband’s death, his property (or share of property) will get divided equally between the wife, children and mother (Class 1 heirs). This complicates matters because there will be multiple owners of the property, whose signatures must be obtained at the time of sale. A list of Class 1 and Class 2 heirs is at the end of the post.

·          Make sure you update the nominations. This is necessary upon a case of any change in status like marriage. After marriage, ensure that your spouse's name is included as a beneficiary. Update the nominees in all your bank accounts. If your spouse passes away before you, then you need to update the nominations. In my case, I had purchased an Insurance Policy through the Army Postal Service, in 1988. Since I was unmarried at the time, my mother was the nominee. It was only after I retired and wrote to the Postal Life Insurance office that I realised I should have changed the nomination to my wife's name after marriage. There are many cases where you should include your parents as beneficiaries, especially in cases where their financial status is not very stable and to cater to their old age needs.

·           Making the nominee also the beneficiary is a very convenient way of smooth transfer of assets. For example, you could nominate one child for one property and another for a different property – all this should be reflected in the will in the same manner. 

·           All your investments and bank accounts should ideally be in the joint name with your spouse. After the demise of the joint holder (spouse) wherever possible, add the name of your children or other heir, and also recheck the nominations are updated. Any investment that is held in joint name (FD, account, MFs etc) automatically gets transferred to the joint holder by the process of deleting the name of the other joint/ first holder. Such investments do not go to the nominees, unless both holders are not alive. So after the husband passes, all joint investments will go to the wife, and she will continue to have an income source.

·          In the case of shares and demat accounts, the nominee is also the legal heir, unless specified in the Will. Hence it is important to ensure that the person(s) nominated for shares, and mentioned as legal heir(s) in the Will are the same, so as to avoid any legal tangles, or family disagreements.

·           It is also possible to mention specifically in the Will if you desire to transfer certain assets to a person who is not otherwise a legal heir, say a relative that might have helped you in your old age, or a friend who has done you service. If this is mentioned, then the legal heirs cannot overrule your Will.

·        Some persons struggle to ensure equitable distribution and try to rework the nominations each time - this is easily done through the Will. You need to specify the beneficiaries and percentages, the nominees are only the custodian, not the ultimate beneficiaries.

Components of a Will.

·           While making a Will, the most important point is clarity and simplicity. Be specific and do not leave any grey areas.

·           Clearly declare that you cancel all Wills, codicils etc made earlier and declare this to be your last will. 

·           Clearly define your family – spouse, parents, number of children , then siblings, in-laws. Use the term 'only' when describing the number of children, siblings.

·        Clearly define who your heir is – I would recommend only one person, preferably the spouse. Define an order of succession should your heir pre-decease you (for e.g.  if your wife passes away before you). You could define a certain percentage to your mother / mother-in-law if you feel it’s necessary, and the rest to your children in equal share. You can include your siblings also as the additional 'layer' of beneficiaries. Recent aircraft accidents show that you should prepare for the eventuality that the husband and wife, or the entire family might perish in an unfortunate event.

·           Try to avoid bequeathing one house to be shared between two children. It would be better to discuss this with them and bequeath one house to only one child. You can specify that the 50% evaluated cost of the flat should go to the other child only after which the balance of monies are to be equally shared. If you have more than one house, then you should discuss the preferences and nominate + bequeath accordingly. Some people do believe that the house should be equally divided. There is nothing wrong in doing this, it just makes things more complicated for your children. This could also bring up family disputes, for example one if one child needs to to sell the house and use the money elsewhere and the other not wanting to sell for sentimental or practical reasons.

·           In case you are the joint holder of a flat, then your Will should clearly state that you Will and bequeath your undivided share of the flat to your wife (husband). Clearly list out the beneficiaries in case she pre-deceases you. This way the ownership remains clear. The wife and husband must ensure that the same nominees and sequence of remaining beneficiaries are mentioned in each one's Wills. They must make the Will at the same time, an ensure that the 'sense' of inheritance is exactly the same, in case the other one dies before him/her. For example, if child A is the ultimate beneficiary of Flat #1 and if child B is the ultimate beneficiary of Flat #2 (in case wife predeceases the husband) then the wife's Will should have the same wording. This does not mean that they should make a single document together, but their individual Wills must have the congruent beneficiaries.

·           You can specify that the house can be either transferred to the heir in her name OR directly sold without going through the transfer process. A copy of the relevant portion of the Will or redacted Will needs to be attached to the sale documents, in such a case. It might happen that one child is now living abroad, and does not wish to retain the flat. In this case, a mention in the Will that it can be sold directly is a big help.

·           You can also possibly specify that in case one child does not want to inherit the flat, or they want to exchange a flat, all it will require is an affidavit. This can happen for a variety of reasons, like marriage, emigration, etc. Keep in mind that sale of a flat of an NRI beneficiary is more complicated since the TDS component is larger. Do check out the rules as required at that time about this.

·           A beneficiary cannot sign as a witness but can be an executor. Preferably the witnesses should be younger than the Testator.

·           A doctor’s certificate proves that the person Testator is of a sound mind when writing the Will. This is essential for senior citizens and any person who is unwell at the time of making the Will.

·           A notarised Will on a stamp paper does not have any standing -in the sense that it is the same as a plain paper will that is not registered. 

·           Registration is preferred in case there is property involved and more so if there is property across two or more cities. In case the person is too frail to travel to the Registrar’s office, then there are provisions to have this done as a home visit. Registration also permits a certified copy to be obtained from the Registrar's office, in case the original Will document is not traceable.

·           Clearly mention about transfer of ownership of your digital assets. The most important is the mobile phone number and email address. This is because all the OTPs and verification emails are based on these two and can be misused if someone gets hold of the SIM card. (Thanks to Maxie for this input). The passwords must be kept separate from the Will, in a safe place in your personal custody or an encrypted soft copy. Your heirs must know how to access them when you pass away, more so with no warning as in an accident. Do not print any login details in the will document.

·           A mention should be made about the vehicles in your name, who do you bequeath them to. You need not give the vehicle numbers since those would change over time

·           A case had come up where the property was bequeathed by the lady in her will to her son but unfortunately, the son passed away at the age of 60 while his mother was still alive. Here, if the 'order of succession' of inheritance had been mentioned, then the original Will would have continued to be valid. If there was a mention that if the son pre-deceases the owner, the property would be bequeathed to the daughter-in-law, or their children in turn if the daughter-in-law also pre-deceased the owner. In this particular case, a new Will was made canceling the earlier one, mentioning reasons, and the matter quickly got resolved- of course, the grandchildren were mentioned as subsequent beneficiaries.  

What happens if you die intestate? The heirs have to undergo two years of litigation with a lot of costs to your heirs to enable them to transfer the property, investments etc to their name. 

• They will have to make an application to the court and file for a ‘succession certificate’ or ‘Letter of Administration’, etc - basically a Court order. 

• Before this, all the assets have to be listed, and the lawyer will file for the succession or LoA. There will be lawyer's fees, and multiple trips to the court. 
• All the persons involved in the proceedings will need to be present in front of the judge for each of the hearings, and this means frequent travels (including if necessary from overseas). Hearing dates are not always adhered to, so the whole process will take about two years at least. 
• The court fees are a percentage of the evaluated cost of all the assets, which includes the value of the flat and the entire investments. The amount has to be deposited with the court at the time of final judgment. Technically, no money can be spent from the estate, because legally it has not been transferred to the heirs. Nomination will help in that the bank will be relieved of its responsibility once the accounts or FDs etc are transferred to the nominee and the funds can then be used to pay the legal fees.
• Once you have paid the court fees and the judgement is passed, the heirs need to write letters and affidavits to all the agencies who will then transfer the assets to the heirs. 
• All in all, it is a painful process for those that you love. You owe it to your loved ones to make a proper Will. 

Probate. In certain cases like a family dispute, the Will needs to be Probated (in Mumbai, Chennai, Kolkata). However not all agencies require a probated will, and often a copy of the will is adequate for most purposes. Without trying to sponsor any particular site, I found some useful information on the probate here. If there is no Will, then a succession or LoA is necessary. Both are long legal processes with associated expenses.

Income tax account. After the demise of a taxpayer, the heir has to upload the following documents through the login of the deceased person:

• The death certificate.
• PAN Card of the deceased and the heir.
• A scan of a document which mentions the name of the heir (a Will, or a "Heirship" certificate / equivalent). 

The IT Department will then verify the details, and approve the legal heir through the email ID of the registered heir. The heir's login will then show an option to file for himself (self / person), and also file as the Legal Heir. Any taxes to be paid or refund received will be applicable to the heir. We have done this during the current assessment year and found the system to be working well. Hence having a Will clearly defining who the heir becomes important.

Living Will or Advance Medical Directives.  This part is a particularly sensitive portion of this blog, and at the cost of offending some of you, an important aspect of our lives in the modern world of medical miracles.

• The Living Will - also known as an advance directive—is a legal document that specifies the type of medical care that an individual does or doesn't want in the event they are unable to communicate their wishes. There are many of us who are concerned about modern medicine prolonging our lives at all costs, even to the detriment of our comfort. Some examples are aggressive treatments in terminal ill patients like use of feeding tubes or ventilators to keep the body going, even in a coma. 
• These are discussions you must have with your family members while you are well enough to do so. You should clearly discuss what are the individual sentiments about prolonging life, and when to say it is enough. There are times you can't make that decision say you are in a coma, or had a stroke. Your family members must have a clear idea of what you want for yourself. They should know whether to prevent the doctor from say putting you on the ventilator, for example - without feeling guilty about the decision. They must remember that it is your decision, not theirs.
• Many of us might not agree with the idea of indefinitely extending life, where there is either continued pain or no ability to communicate. A Living Will clearly states your intention, and mainly assists your family taking care of you, to take the correct decisions on whether to commence these aggressive treatments. I have signed a DNR (Do Not Resuccitate) form or a Palliative Care form when getting admitted - this clearly states that the doctors shall not commence any aggressive treatment for unnecessary revival, or life extension. This is mentioned in the draft document too.
• In 2018, India's Supreme Court allowed people to draw up living wills and thereby choose passive euthanasia, where medical treatment can be withdrawn under strict guidelines to hasten a person's death. Active euthanasia - any act that intentionally helps a person kill themselves - is illegal in the country. Here is a link to a blog about the SC Judgement from 2018 about a Living Will.
• A BBC article on the importance of a Living Will is here.
• A hospital in Mumbai has started a clinic to help prepare a living Will - here is the link.

 So many of my friends that I spoke to have said - 'Oh, it has been on my mind and I want to do it, but don't know how' or 'Is there any simple way to do this?' or 'A will is not required, I have only one child and she will inherit everything after us ' and so on. This prompted me to write this blog post (two paired ones, actually) to motivate more folks to make out their wills, and also make available the tools so that it can be easily done. Take a deep breath,  step out of your comfort zone, and Do It. If you have already made one, review it based on the above points. Please also talk to everyone around you and encourage them to make a clear Will, at the earliest. It is not necessary to hire any agency to make your Will but if you do, then see if all the points covered here can be included as well.

Some real-life examples of problems if there is no will.

An elderly lady was knocked over by a vehicle and passed away intestate in 1978. The lady had a few shares in physical form, and the family continued to receive dividend warrants and confirmation of bonus shares and splits. Unfortunately, there was no information readily available about the process for transfer of the shares, and because there were only a few shares nothing was done at the time.

Cut to 2018. The number of shares had increased, and the value was also substantial. The only surviving relatives were two granddaughters and a grandson now about 70 years old. 

• It was amicably agreed that the grandson would inherit all the shares so they met a lawyer who asked him to make out a detailed list. The succession certificate can be made only one time hence all investments must be included right from the start. It took another three months to confirm this and one bank account plus a few more shares were identified. 
• The case went on for about two years. Many court visits in the peak of summer or rainy days became a waste of time due to last minute cancellation by the court, despite waiting for the whole day in the court premises. All surviving family members (two granddaughters and one grandson) had to attend each time, although the two had given sworn statements on the first day in court that they did not want any part of the inheritance. 
• After two years, the judgement was handed out in the grandson’s favour after the money was deposited in the court. Then started the process of transferring the shares and money.

The rules dictate that if a person dies intestate and the investments are not transferred within a period of seven years, everything is deposited into the Investor Education and Protection Fund (IEPF) . Hence, armed with the judgement, an application was made to the IEPF. It has taken about two years after the judgement, and a lot of correspondence but the assets are now transferred.

Curious case of multiple Wills signed on the same day with completely different bequeaths.

A lawyer recounted a case where three brothers lived separately in a three-storied building that was built on the plot purchased by the father now deceased. The widowed mother lived with each of the brothers in the individual flat for a few months at a time. After she passed away, each of the three brothers came forward to claim the entire property as his own. As proof, they put forward the old lady’s Will, signed exactly the day she died !!! Incredible, isn’t it? The witnesses to each Will had truthfully signed but did not know that were another two Wills with each of the two other brothers!! 

It transpired that each one had got an Will signed from her without a date, and each brother put the date of death on the Will after she passed away. It was impossible to determine which was the correct one. After many meetings, the lawyer advised the three brothers to amicably sort out the matter, because there was no way any judge would ever be able to pronounce any judgement on the matter.

These two cases clearly illustrate the importance of making a will with a clear date, a doctor’s signature and preferably registering it.

  

Additional Information about the Hindu Succession Act.

Below, I have listed some excerpts from the Hindu Succession Act that define how the estate is to be divided in case a person dies without making a will. If a will is already made, then these points do not hold valid.

If you have any suggestions to include points about any other succession act, I will be happy to include these and put all the information in another post all together. 

If you go through these you can see how complicated that entire process will become. For example, your flat will have to be divided amongst all the Class 1 heirs, and not just to your spouse. 

Female Hindu. The property of a female Hindu dying intestate shall devolve according to the rules set out in section 16 of the Hindu Succession Act:

·      Firstly, upon the sons and daughters (including the children of any pre-deceased son or daughter) and the husband;

·      Secondly, upon the heirs of the husband;

·      Thirdly, upon the mother and father;

·      Fourthly, upon the heirs of the father; and

·      Lastly, upon the heirs of the mother.

Male Hindu. The property of a male Hindu dying intestate shall devolve according to the rules set out in the Hindu Succession Act. If there is no will, all the assets are equally divided between all the Class 1 Legal Heirs. 

Order of Inheritance:

·      Class I heirs take simultaneously and to the exclusion of all other heirs.

·      All Class I heirs take equal shares of the property, except for the widow or widows who take one share together. 

·      If there are multiple surviving heirs in Class I, each receives an equal share. This means that if you are 50% owner in a flat with your wife, then after you die, the flat will be equally divided between your children, wife and mother.

·      In the absence of Class I heirs, the property is passed on to Class II heirs, then agnates, and finally cognates

 Class 1 Legal Heirs (male Hindu).

·      Widow: The deceased's wife (or widows, if there are multiple).

·      Sons: Biological sons and adopted sons inherit equally.

·      Daughters: Both biological and adopted daughters inherit equally with sons.

·      Mother: The deceased's mother.

·      Children of a Predeceased Son: Grandchildren (sons and daughters) of a son who died before the deceased inherit their father's share.

·      Children of a Predeceased Daughter: Grandchildren (sons and daughters) of a daughter who died before the deceased inherit their mother's share.

·      Widow of a Predeceased Son: If a son dies before the deceased, his widow inherits his share

Class 2 Legal Heirs (male Hindu) - It is a long list!

·      Father

·      Son's daughter's son

·      Son's daughter's daughter

·      Brother

·      Sister

·      Daughter's son's son

·      Daughter's son's daughter

·      Daughter's daughter's son

·      Daughter's Daughter's daughter

·      Brother's son

·      Sister's son

·      Brother's daughter

·      Sister's daughter

·      Father's father

·      Father's mother

·      Father's widow

·      Brother's widow

·      Father's brother

·      Father's sister

·      Mother's father

·      Mother's mother

·      Mother's brother

·      Mother's sister

Agnates

·         In case a Hindu male passes away intestate and leaves no class 1 or class 2 heirs, then the property would devolve on  (be inherited by) agnates. A person is said to be an agnate of another if the two are related by blood or adoption wholly through males. Agnate relationship does not extend to relationship by marriage and is restricted to relationship by blood. Also, agnate does not include widows of lineal descendants of the intestate.

Cognates

·         If a Hindu male passes away without a Will and has no class 1 or class 2 heirs or agnates, then the succession would be through cognates. Cognates are ones who are related to the intestate by blood or adoption but not wholly, through males. Thus mother's brother's son and brother's daughters son are cognates, eligible for heirship.

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