Name: Amar

Age: 49

Profession:  Doctor

City: UK

Summary: Talking about your Will and your intentions to your family is so important - as Amar found out the hard way. Without any knowledge of the Will and with no asset register, it can become arduous and cumbersome to retrieve what’s rightfully yours.

Was there a Will: Yes

Story

Amar and his brother lost their father, Vijay (76), and mother, Sarita (75), within a few weeks of each other during the COVID-19 pandemic in 2020. While the deceased parents resided in India and held assets here, both Amar and his brother, their only children, were non-resident Indians (NRIs).

In addition to the emotional hardship of losing their parents in close succession, the grieving brothers faced several hardships in managing the estate left behind by their parents, having to undertake the necessary court procedures, corresponding with administrative authorities and, finally, retrieving the assets.

This was in spite of the fact that the parents had left behind their respective Wills and there were no disputes among any of their legal heirs.

Challenges

• The lack of background to the parents’ succession plan posed a hurdle at the very onset, as the children undertook administering the estates. There had been no discussion among the family in relation to inheritance of their parents’ assets, perhaps owing to the taboo nature of the topic in India.
• As a result, the brothers found the task of drawing up a complete list of assets extremely arduous as neither of the Wills were up to date. Moreover, several assets were merely classified as categories. The children had to correspond with several financial institutions corresponding to the assets mentioned in the Will, only to later conclude that some of the clauses in the Wills were not admissible.
• The deceased parents had amended their Wills by way of multiple codicils, a few of which were contradictory. The discrepancies owing to several versions of the Will read with codicils led to more confusion and delay.
• In the mother’s Will, she had appointed the father as the sole beneficiary. This posed a huge hurdle as the father passed away in close succession without leaving behind any back-up beneficiaries. This left more room for intervention from the courts and the children had to establish their legal rights as if there was no Will.
• Since there were multiple documents, Wills and codicils, it was difficult to ascertain who the executor was. The deceased parents had named a CA in one of the Wills and no executor was mentioned in the other Wills. It was really difficult to ascertain the real intention of the testator. The children also realised that relying on the executor blindly was delaying the process because the executor in question here was not known to the deceased parents on a personal basis.
• Though, among all the assets, only one was in a jurisdiction that mandated probate, the legal advisor had informed the children that every immovable property would require probate. [Typically, probate is required for Wills written in Kolkata, Chennai or Mumbai, or for those Wills which mention immovable properties situated in these cities.]
• The fact that the Witness was also one of the Beneficiaries in the Will further slowed down the administration of the estate.

Learnings

• The benefits of discussing one’s succession plan with one’s family cannot be emphasised enough. However, there is no denying that whether a discussion is a viable option and with whom, the extent of the discussion may depend upon the specific circumstances of each family.
• A good practice is to clearly inventorise one’s assets under the Will and be organised with the paperwork corresponding to the concerned assets and financial institutions. A carefully-drafted Will based on such an inventory goes a long way when undertaking the activities once the Will takes effect. Further, mentioning particulars of each asset, as opposed to broad categories in the Will should be preferred.
• While an individual is at liberty to write more than one Will, it is highly advisable that all prior Wills must be explicitly revoked to avoid any ambiguity. Only the last Will of a person takes effect.
• It is always recommended to consider succession of Beneficiaries as well. It is prudent to appoint an alternative Beneficiary who can inherit the assets should the primary Beneficiaries listed in the Will are not around.
• The office of the Executor is one of great responsibility. For this reason, the Executor must be someone who would be both willing to and capable of fulfilling their duties.
• It is worth noting that the law on probate in India is hinged upon the requirements of concerned institutions/authorities, including municipal authorities when dealing with specific assets. Therefore, the requirements on the ground would need to be complied with.
• A sound piece of advice from a practical standpoint is to appoint independent Witnesses under a Will. This is despite the fact that, for most testators, this is not mandatory under law.

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