When and Why should you write a WILL
Why you should write a Will?
Any person who wants to distribute his/her properties/assets/wealth according to his/her wish needs to write a will to enable the same. This is also necessary to avoid succession disputes.
A will cannot override the natural succession of ancestral wealth. A person cannot will away his/her entire inherited property as per his/her wish. He/she can only pass on his share to anybody he wants, but the remaining property can be willed only to the legal heirs.
If one wants to give assets to people other than his/her natural heirs, one need to specify the reason for doing so. This should be done to avoid the chances of any objection from other legal heirs.
Triggering Events when one should write a Will.
There is no particular age to write a will, however if one has not yet updated the will the happening of the following events should provide the reason to kick start the procedure of making a will.
Marriage reflects significant change in one’s personal life. It is important to include the spouse in one’s will. It is also important to remember that wills made before marriage stand cancelled after marriage unless otherwise specified in the will.
With the birth of children it is important to have a will in place so their well being is properly provided for in the future. While the laws on intestacy (dying without a will) will ensure that the children are entitled to a portion of property, the ultimate division may not be as per one’s preference. Hence it is imperative the WILL mentions division of properties for children carefully.
More importantly, if there are minor children, it is better to name a guardian for the child if both parents die.
The child or their spouse, or even the grandchildren, will affect how one distributes their property.
Starting a Business
When one starts business, the will should be revised accordingly.
In addition, family businesses may include several generations. The will should reflect these business plans and can clearly outline how the business will be passed on to the next generation.
Buying a Property
Buying or selling a real estate property implies one should update the will regarding how the assets will be distributed
A Visit with Mortality
This is the harshest of reminders. If a person or his/her loved recently had a health scare or significant event reminding one about death, it is high time that one should make a will or do any further necessary updates.
It’s Been too Long
As mentioned above, it is recommended to review or update the will at least every five years.
A trust is essentially a transfer of property by one to the other to be held by the other for the benefit of some person .
A Trust can be created by any person competent to contract or even by a manner with the authority of a competent court and respect of any property which is transferable and over which the author of the trust has dispossessing power.
A few kinds of trusts are
- Living trusts – set up during the person’s lifetime
- Testamentary trusts- set up in a will and established only after the person’s death when the will goes into effect.Living trusts can be either “revocable” or “irrevocable.”
Trusts may be needed for protecting property for certain beneficiaries (minors), managing property upon incapacity (old age, physical disability) and avoiding a will contest.
Top 5 reasons for NOT writing a WILL
- One has spent a lifetime working, saving for the family. Hardly there is any need to make a will since it will pass automatically to one’s successor.
- When you write a Will and then share it with your intended beneficiaries, expectations may be set too high for the inheritors.
- All lawyers are loaded – they make a fortune writing Wills. The rumor that they make more money representing families who battle in court when there’s no Will is simply hearsay.
- Wills often include Advanced Health-Care Directives and clearly outline the kinds of medical interventions one wants. But here again a Will denies the family the opportunity to decide what to do or not to during medical emergency.
- Without a will a family can go through the pain of searching personal files and possessions in an attempt to figure out what the dead person owned. Nothing should come for free ! And here a fortune is involved !
10 things to know before writing a Will
Definition of will
A will is simply a legal document in which a person (called the testator) declare who will manage one’s estate/properties after the person’s death. The person named in the will to manage the estate is called the executor because he or she executes the testator’s stated wishes.
Dying without a will
If a person dies without a valid will, he or she becomes what’s called intestate. That usually means that the properties will be settled based on the laws of the state that outline who inherits what. Probate is the legal process of transferring the property of a deceased person to the rightful heirs.
Requirement of a lawyer to prepare will
As long as the will meets the legal requirements of the state, it’s valid whether a lawyer drafted it or it was self drafted.
Can a spouse and the testator have a joint will or separate wills?
Separate wills always make better sense.
Who should be named as executor?
Where to keep the will?
A will should be kept safe yet accessible, either in a bank safe deposit box that only the testator has access to (the family might need to seek a court order to gain access after death) or in a waterproof and fireproof safe in the house itself.
How to leave specific items to specific heirs?
If one wishes to leave certain personal property to certain heirs, the same should be indicated in the will. In addition, a separate document called a letter of instruction can be created that should kept with the will.
Who should act as a witness to a will?
The attesting witness and his or her spouse should not be a beneficiary under the terms of the Will The witnesses should be younger than the person making the will and not very old as the will might be in effect for several years
How often does a will need to be updated?
The decision is upto the person owning the will. The most current one in existence at the time of death will be the valid document.
Who has the right to contest the will?
Contesting a will refers to challenging the legal validity of all or part of the document. A beneficiary who feels neglected by the terms of a will might choose to contest it.
Major benefits of drafting a will.
- Wills help specify personal preferences/desires
- Wills can limit family disputes
- Wills make quantifying and distributing assets easier
- Wills help provide for heirs with special needs
- Wills can name a guardian for Children
Should one register a WILL? What are the benefits of registering? What if someone does not register a WILL
Registration of a will is not compulsory in India. However, registration implies that the person writing the will and the witnesses have appeared before the registering officers who have verified their identity and attested the same.
The non-registration of a Will does not lead to any inference against the genuineness of a Will. Whether registered or not, a Will must be proved as duly and validly executed, as required by the Indian Succession Act. Once a Will is registered, it is placed in the safe custody of the Registrar and therefore cannot be tampered with, destroyed, mutilated or stolen.
Should I write a will before surgery?
A person over the age of 18 should have a living will.
A living will is a legal document that specifies what treatments, particularly life-prolonging treatments, one decides to receive or not receive when one becomes incapacitated and unable to relay his/her wishes themselves. It is especially important to create a living will prior to having surgery.
A living will specifies what life-prolonging treatments, such as whether or not to place you on life support and for how long and whether or not to resuscitate you.
A living will eases the stress and contemplation one’s family would endure when faced with making decisions regarding treatment. Furthermore, it ensures that the treatments are indeed carried out as per one’s wishes.
Content Writer, Dilzer Consultants
26 February 2016