How to create a will?

Creation of a Will

Writing a will should be one of the goals in every person’s life to avoid many issues after death. One doesn’t need to be wealthy to write a will. Transmission of wealth to our loved ones should be a hassle-free process and writing a will is the right step in that direction. 

Without a Will, the family is left with the sole option of going into a legal battle. So it does not end by just writing up a will; it needs to be framed in a way that is unambiguous and leaves no chances of disputes. A will should be easy to comprehend and implement. 

The property of an individual is usually divided among his/her legatees as per the laws of inheritance. An estate plan or a will gives the person a right to nominate the legal heirs with their shares in the estate as per their discretion. One may even choose to exclude one of them completely from the list of beneficiaries. 

Our objective in this article is to help you progressively make a will, taking into account every critical aspect affecting your finances. There are many integral and related areas revolving around this topic. We shall try to understand each of them in detail. 

A stepwise guide to framing an estate plan/will

Before you start working on an estate plan or a will, it’s important to identify a few things. For example, whatever you want to distribute among your legal heirs must be included in your will. Similarly, there are recipients of the wealth who need to be mentioned clearly. The manner of execution and who will execute it are other important areas of the will. There are many parties involved in it. And if you find making it difficult, you may very well take the advice of a professional who might be of great help. 

The task of making a can be divided into a few steps such as the following:

1. List down your goals: Each person has his/her own set of goals in life. These goals shall be the force behind shaping up your will as well. You may have objectives as an individual, and you can also have goals for your family. An individual might want to protect the interest of a few members of the family, put conditions on the transfer of wealth to a few and unconditional transfer of wealth to others. There could be children for whom a certain portion of the wealth is preserved. In absence of a properly laid out plan, the wealth will be distributed unequally and might jeopardise the neediest and most innocent members against those who do not take much interest in the family’s affairs. Priorities in wealth often get linked to life goals and financial goals. 

Another important task is to distribute the assets as a whole to the  legatee instead of dividing a particular asset among them. For example, if there is a precious ornament or an art piece, it can be given to one of the legal heirs. If they have to sell it and share parts among them, it may cause trouble.  

2. Take a stock of your assets: Your inheritors need to know which property is owned by you and what was the source of its acquisition. It could range from an ancestral property to self-acquired ones. 

There are bank accounts, bonds, mutual funds, Demat accounts, etc. that start pilling up during our lifetime. A lot of complications can be avoided if you follow the practice of keeping a list of all of them. At the time when you make an estate plan, you need to consolidate the details of your assets in one place. This will avoid confusion on the part of the executor as well. There can be a delay in distributing assets otherwise if there is no clear-cut plan mentioning your assets. 

3. Name your beneficiaries: There could be a few members of your family who are very close to you and for whom you would love to support financially. You can give them the right to get your wealth all at once or in parts. If divided into parts, they will receive a portion of the inheritance at the intervals or age fixed by you. You can also set aside a part of your wealth for charitable purposes. 

Those who are going to receive the benefits of the estate are called beneficiaries. You have a right to give your property to any person. In that case, you should make the process of making the will more transparent and it should raise any suspicion. 

4. Choose executors, trustees and guardians: 

– There is no such obligation or compulsion to have an executor and it all depends upon your choice. You should know the people who are reliable to carry out the important task of executing your estate plan. One of the nominees can also be appointed as an executor. There can be more than one executor as well. You can appoint a lawyer or a firm of lawyers also The person making the will is known as the testator. He/she can appoint an executor in the will. It would be well and good if that person is someone to whom your family is accustomed. An executor will be responsible to carry out the directions prescribed in your will. An executor must collect and realise the estate of the testator after his death and pay off the debts if any. The executor may also not agree to fulfil their obligations and nobody can compel them in that case.  He/she must be capable of convincing and guiding your family in your absence. 

• There are a few legal and administrative formalities that need to be fulfilled by the executor. 
• Similarly, suppose you have set up a private family trust or also a charitable foundation or both of them. In that case, the responsibility to manage the trust will be in the hands of individuals/corporate trustees who are capable of it. 
• Guardians are those who take care of the children in case of the death of the parents. You should mention the name of a guardian you consider fit. Who will raise the children and how they will be raised by such a person is completely left to your judgement. 
• The successors of your estate must be capable of running it and it is equally crucial to identify them. 
• Once you prioritise the minors in your will and nominate a guardian, the guardian can take care of their affairs and wherever the owner’s signature is required to enter into any kind of financial transactions on the minor’s behalf, the court gets involved and his/her interests are protected. 

5. Get an estate planner: Once you get an idea about the key factors and individuals to be considered in your will, the next important segment is about framing an estate plan. Sometimes it becomes necessary to take professional guidance, especially when matters like an estate plan are involved where nobody has any experience. The formats that are available online might not be of much use. There is no standard format that can be used by one and all. Each individual has unique circumstances and preferences. The use of standard formats might prove to be dangerous instead of helpful.  While making a will, you come across several other things which you did not even know about. Like you are planning for the ‘what-if scenario’ after your death, but you never knew how to meet certain goals during your lifetime. You get a better insight into how your financial affairs will be managed if you are unable to do so though you are alive. For example, such a situation calls for a power of attorney. 
6. Communication is the key: It is essential to let your family know about a few areas of your financial aspects without fail such as insurance, investments, etc. An estate plan also needs to be communicated with your family. They should not only be made aware but also responsible to carry out the necessary formalities about the execution of the will, after all, it is about them and they are ultimately going to benefit from it. 
7. Review the estate plan: It does not end when you make a will. The will should be reviewed by you after a certain interval, say once in two years. Life goes through constant changes which may compel you to bring out changes in your will. There could add to the family due to birth of a child, marriage or moving out of India of a member, acquisition of new assets or disposal of an asset etc. all these factors need to be given effect. 

Mr X was is 48 years old at the time when he made his Will, he had two minor children and a wife. Since the elder son wants to go abroad, he is giving away a part of his possessions to pay for his expenses. This necessitates a change in the list of his assets and the Will is rectified to include this change. Nowonwads the changed Will shall be considered as the older one is no longer enforceable. Only the latest and updated Will be taken as final irrespective of whether it is registered or not. 

What are the important aspects that you should keep in mind while writing your estate plan/will?

• An important point to remember is the nominees get proceeds from an account and become custodians of the same. It does not make them beneficiaries automatically. A nominee can access the deceased’s funds but he/she may or may not be a beneficiary. It is better to keep the nominee and the beneficiary the same person.
• It is not advisable to keep personal grievances against one or more members of the family while making a will. Because this is the last time you will encounter the feelings of your loved ones, and if you leave any of them dissatisfied, it will result in a feeling of unfair treatment for the person on the receiving end. Such a member may initiate a legal action challenging your will and things can out of hand. Include all the legal heirs in your estate plan and give them fair treatment. Unfair distribution is likely to lead to unnecessary hassles for all the survivors. 
• Two witnesses are needed to validate a will. They have to sign the document in presence of a testator. Any of the beneficiaries named in the will should not be a witness. If there is ongoing distrust or disputes between the legatees, it becomes prudent to have independent and trustworthy witnesses to authorise the estate plan. Choose young witnesses who can outlive the testator and would be available for testimony in case of need. You can have professional corporate executors under such circumstances. 
• Get a doctor’s certificate to avoid the claims of the testator not being in a sound state of mind at the time of making a will. It is advisable to get this certificate in 24 hours only. The doctor will certify that he/she is competent to write the will. 
• Video record the reading and signing part of the estate plan by the witnesses. So that the authenticity is not put in question. This is again to avoid the will getting challenged by the discontent legatee/s. 
• Registration of the will is not mandatory as per Indian Laws. But you have a choice to do so. From the legal point of view, it will not make any difference, but due to many advantages attached to a registered will as compared to an unregistered one, it is advisable to get it registered. A will can be made on plain paper by the testator. Later it is registered with the registrar. A registered will enjoys many advantages like it cannot be destroyed, stolen or gets tampered with. A registered will faces fewer questions about its authenticity because the registrar scrutinizes the will and gets the thumb impression and the signatures of both the testator as well as the witnesses. This process approves the will for its legitimacy. 
• Registration of the Will is possible even after the death of the testator. The beneficiaries can get the Will registered. For this, the beneficiaries shall have to apply together with the original Will and the death certificate with the registrar. The registrar shall record the statement of the witnesses. Once satisfied, the registrar shall register it. 
• Nobody is ready to believe that eventually, they are going to die. People always postpone estate planning even if they realise that it is an important step in their financial journey. You should consider making a Will at least when you hit 50. You can even make it before this age if you already have many properties and you sense that non-making of a will is going to create trouble in future. A lot of money is spent to fight for getting the money that already belongs to your beneficiaries. For example, a father had 3 sons. He left Rs. 2 crores for them in the form of assets and properties. The sons fought over the will for a few years and paid Rs. 20 lakh in the process. 
• In absence of a will, the legatees have to file many documents and undergo various processes to acquire their inherited assets and/or properties. Like a succession, the certificate is needed in the case of movable property and an application has to be made to the high court or magistrate to this effect. Immovable properties shall need a letter of administration. There are cash, assets, investments and other things that need a transfer of titles. It takes more time and involves more money. 
• Without a will, there is a higher probability of the assets getting distributed as per the provisions of the Succession Act as per your religion. Drafting a will incorrectly can also raise a lot of questions. Make sure that all the details in the Will are put correctly including your name, address, date and place of making it. Do not use vague sentences and give a clear-cut idea of what you want to do. List down the particulars in detail and be very specific. Include all your bank accounts, and put the names and addresses correctly. Similarly, the particulars of your insurance and investments must be specified very clearly. 
• Understand the difference between a gift and a Will. A gift is something that you make during your life out of love. A will is something that comes into effect only after your death. A gift that was once given, cannot be revoked. An estate plan can be changed after it’s made. It is wise to give away a few things by way of gifts, but keep the majority of your belongings to yourself as old age is crucial. One may not like to be dependent on their children. It is better to hold on to your assets considering your financial well-being. There have been incidences where parents gifted everything to their children and later regretted it as none stood with them when they needed care and monetary assistance. 
• Maintaining your health becomes crucial in old age and many also face terminal illnesses. Make a few provisions in your will as to who will conduct the financial transactions when you become incapable of doing the work. A living will show your wish regarding your health decisions if you are suffering from a terminal illness. Whether you want to continue your treatment and how and also when you want to put it to an end can be written down in a living will. It is surely a cumbersome process but worth it. 

It is recommended that the estate plan is fair and transparent and does not jeopardise anybody’s interest. If there is any legatee in whose favour you want to allocate more assets than the others, then you can write an ethical will, giving reasons for the same to avoid disputes. Choosing one beneficiary over the other or inefficient distribution often gives the aggrieved party a chance to raise questions in a court of law. 

Keep the process simple, take professional guidance and follow the general but important aspects in mind while making a will. A will cannot be examined by any person, it is a confidential document. Only with the consent of the testator, it may become accessible to someone. A death certificate of the deceased testator has to be produced before the registrar to get a certified copy of the will. However, if a registered will undergoes any change, it has to be done only by way of registered, documented amendments to an existing will. That way a registered will involves a legal route and can become a hassle for the beneficiaries. 

Note that there are several disputes that the courts have to resolve because of the fault in making a Will, its execution and witnessing. So a lot of struggle can be avoided, simply by making a Will. The doctor’s certificate and video graphing the process of signing by the witnesses add authenticity to it. 

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Krishna Rath is a SEBI Registered Investment Adviser, and since 2015 has been educating netizens on investments and insurance. Krishna is a fee only SEBI RIA and is Odisha's first SEBI RIA. With background in IT, Krishna is changing the advisory space with new innovations in AdvisoryTech.

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