Writing a Will, though fundamental to one’s financial well-being, is an exercise that is often overlooked or relegated to that elusive ‘tomorrow’. Though familiar to most, it is cloaked by niggling misconceptions of perceived complexity, being unreasonably costly and time-consuming, or just the idea that it’s not for everyone. However, nothing could be further from the truth. Writing a Will is an integral part of protecting the future of your loved ones and securing your legacy. With the right legal expertise and guidance, writing a Will can be a simple task, and is sure to be a financially sound decision for you and your family.
What Is A Will?
A ‘Will’ is a legal document that forms part of a person’s succession plan and comes into effect immediately upon his or her demise. The person making the Will (known as the Testator) makes a written declaration of wishes and instructions for how the person’s property and assets (their estate) shall be distributed to their Beneficiaries (the people named in their Will) after their demise. A trusted person (an Executor) is then appointed to ensure that their estate is distributed according to their wishes.
What Happens Without A Will?
When a person passes away without a Will in place, it is known in legal terms as an intestate death. In India, the person’s estate then becomes subject to intestate succession laws that are both complex and dependent on the community or religion that person belongs to (personal laws). For example, Hindus are governed by the Hindu Succession Act 1956; Christians and Parsis, the Indian Succession Act 1925; and Muslims are referred to Sharia law.
The fact is, all these personal laws have one thing in common. They are designed for the masses and as such are formulaic in nature. The resultant set of rules provides guidance in the broadest of terms, which for most people does not take into consideration their unique situation. This includes their relationships, whether or not they have minor children, and being able to appoint a reliable person to distribute their estate in a fast and efficient manner.
The Perils Of Intestate Succession
More specifically, under personal laws, the deceased’s estate gets divided among specified heirs, typically their spouse and children. In the case of Hindu males, their mother (if surviving), also receives a share of the assets. So when an individual passes away, he or she is likely to leave behind 3-4 inheritors.
Distribution of assets in this way can result in an asset having multiple owners, which is likely to dilute its overall value. Also, this kind of mandatory division of assets among specific heirs means that there is no way of ensuring that the more vulnerable members of the family get more than the ones who are already well-established, and may be less in need.
In the case of real estate, intestate succession leads to multiple members of the family jointly owning the property. Disposal of jointly owned property is much more difficult, requiring mutual consent of all co-owners. This is likely to be a tall task, which may result in disputes and soured relationships.
Intestate succession also does not allow a person to provide specific instructions for the benefit of their successors. An important example of this is appointing a Guardian for minor children and, of course, selecting an Executor to ensure the smooth transition of the estate. Nor can specific bequests be made for select individuals (such as employees and friends), or charities.
Finally, asset discovery itself takes considerably longer in the absence of a Will. After all, no one knows your assets and liabilities as well as you do. And, without a trusted Executor, confusion arises over which heir will assume the responsibility of approaching the courts and obtaining the rights to administer the estate. In many instances, heirs procrastinate, leading to assets remaining unclaimed. Even worse is if the heirs turn acrimonious or hostile, in which case distribution of assets is further delayed.
An alarming fact, published in The Hindu in August 2021, stated that nearly Rs 1.5 lakh crores worth of assets are lying unclaimed with banks and insurance companies; undoubtedly a testament to the essential nature and need of the hour for Will-making across all income brackets.
Real-World Examples
It is common to find examples of everyday people who become victims of an imperfect system. Sadly, this is unavoidable, as the system is designed to cover the masses and not individual circumstances, each with its own unique set of challenges.
For example, in an unfortunate instance, the sole breadwinner of a family, a Hindu male, passed away without writing his Will. His wife, two minor children, and his mother survived him. According to the laws of intestate succession, his estate was to be divided in four ways. Since the courts do not release assets allocated to minors due to possible misuse - not even to the Guardian without a surety of proportionate value - the shares of the two minors (1/4 each) ended up being stuck in a district court. The wife, who genuinely required the money to care for herself and her children (medical, educational needs, etc), only received a quarter of the entirety of his estate.
Meanwhile, his mother received her share as per the law, despite being well provided for by her late husband. And so, due to the complexities associated with intestate succession, the family had no idea how to get their assets released or how the deceased’s mother could relinquish her share. As a result, they ended up facing multiple legal obstacles during an already difficult time.
All this could have been avoided if the deceased had made a Will. He could have left his entire property to his wife who would have deployed the funds meaningfully for herself and her children. Furthermore, he could have made a clear list of his asset holdings, which would have made the transition much easier for his family.
Similarly, a widow approached her lawyer the year following her husband’s demise to have her own Will drawn up. Even though she was a professional and well-off, she had experienced how difficult it was to recoup her minor children’s shares from the district court, since her husband had passed away without a Will. So, even affluent families with access to excellent legal resources are not guaranteed a seamless and smooth transmission of assets in the case of intestacy. Moreover, as was the case during the recent pandemic, unforeseen circumstances like lockdowns can further complicate matters and cause unnecessary delays and strife.
The Bottom Line
Ultimately, we spend our lifetimes working to make sure our families are well cared for. So, why stop short? Making a Will is the responsible thing to do and ensures that you have done everything you can to secure a smooth transition for the people most important to you, even after you are gone.
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