Why and how often should I update my will and estate plan?
A Will makes succession less complicated and simpler. However many family members do fight and challenge Wills. As per Estate planning experts, this is mainly because of loop holes, overlaps or contradictions in the document arising due to people failing to revise and update their Will periodically.
Since Assets and properties increase or decrease with the passage of time, it is a good idea to review the document every three to four years.
When should an Indian will be updated?
Purchase or sale of assets : The residual or a future assets clause in a Will ensures that any property that is not mentioned in the Will is distributed to the beneficiaries. However, in the following cases it is necessary to update a will:
- If one wants to give a newly-acquired asset to someone specific, it is necessary to revise the Will.
- In case the asset/property is bequeathed to two people, the proportion of ownership and to whom all the property should go to in case of the death of either/both of them should be clearly clarified and stated with an amendment.
- If an asset is being sold, it should be recorded and an amendment made.
- If one wants his/her children to have the property but also needs to ensure the spouse’s rights, then it should be mentioned that he/she wants to give absolute right over such property to a specific person subject to a life-interest in favour of any other legatee.
Birth of a family member : In case of important family changes such as the birth of a family member/s (for example, children or grandchildren) , one may want to add the new member/s as a beneficiary and hence need to update the will accordingly. It is advisable to appoint a trustworthy legal guardian in the Will who will be authorised as the custodian of the bequeathed property till the child becomes an adult.
Change in Marital status : A will needs to be updated in the following scenarios.
- For a few communities like Parsis and Christians, a Will made before marriage is not valid post marriage unless the individual intended to marry when they made it and the Will states as such. In such a case the will needs to be updated post marriage.
- If a person separates or divorces after making a Will, the Will would remain valid, and this is true for all communities. So, unless one revises the document, the ex-spouse is entitled to a claim on the person’s assets.
- Nominations and joint holdings add to the confusion. A nominee merely acts as a trustee to the assets on behalf of the legal heir. This means that even if one’s mother or children are the nominees, the spouse can claim assets by way of the Succession Act. While altering the Will, in case of marriage or divorce, the nomination in insurance policies and bank accounts should also be simultaneously changed and updated in the will, so that the legatees and the nominees of an asset are the same.
Death of beneficiary or executor : Although it is advisable for one’s original Will to have a list of ‘alternate’ beneficiaries, executors and guardians, it is always preferable to review the document, if not amend it, if there is a death. If none of the beneficiaries are alive, provisions should be made for distributing the wealth to charity, friends or distant relatives.
How to make a codicil to a will
A Codicil is a separate document either on a plain paper or Stamp paper and is an addition to the will.
A few pointers about codicil:
- The document states what items of the will are changing.
- It allows one to make amendments to an existing will instead of completely re-writing an already written version.
- It is better to use codicils only for very small changes, because they can make sorting out the will more complicated in case one dies.
- If there are substantial changes to a will, it is a good idea simply to create a new will rather than drafting a codicil.
- A person can have a lawyer to write the codicil or can make one by himself /herself.
- It needs to be signed and witnessed in the same way as a will.
- A will and codicil should be kept together since after one’s death, the two documents will be read and interpreted together.
Best place to keep a will
Safe Deposit Box
Many individuals opt to store a will in a safe deposit box. Access should also be granted to the executor as the legal authority to take possession of the will upon the individual’s death.
An attorney is obligated to keep a client’s will confidential and may charge little or no fee to retain the original document. The executor and family members should be made aware which attorney is in possession of the will.
An individual can decide to store the original copy of the will in the safety of one’s home. In case of such an option it should be stored in a waterproof and fireproof safe. More so, the executor and beneficiaries should be aware of where the will is being kept.
Debalina Roy Chowdhury