Why to make a will |
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Death is a topic most of us shy away from. Not only do we not plan for it, we think it morbid to talk about it with our aging parents or our spouses. We ignore planning for this "dead sure" event which will occur in our life time. And most of us of course shy away from making a will. Whether you own the Taj Mahal or just 10 pairs of Nike, the fact is that they are your property and you would like to say what goes to whom after you have gone to the other world. Also if you have minor children, making a will is definitely a must. People avoid this sensitive issue by coming up with a hundred different excuses:- "Everybody already knows who's supposed to get what." OR "In my desk drawer there's a list of my possessions, and the persons to whom they should be given." OR "I don't have much. The kids can just come in and divide it among themselves however they decide." OR "I put name tags on the bottom of every nick-knack and piece of furniture, so they'll know who gets it." OR "Last year I put all my money in a joint account with my oldest daughter. After I die, she knows to split it three ways with her brothers."
All the common situations above are prescriptions for trouble, for various reasons. There is simply no way for anyone to enforce your intended plan if it is not contained in a Will. Families can be forever torn apart, jockeying for position over the distribution of even small amounts of property. Many people acknowledge the pitfalls - for others - of not having a Will. But their kids, so they say, would respect the parents' wishes and never stoop to fighting over the estate. Even if these folks are right, what about the kids' spouses? In-laws (sons and daughters, particularly) can be a problem. Whether it is well intentioned or not, meddling is a specialty with some of these people. Also once you're dead, the best will or trusts might not keep your survivors from killing each other if you don't have a clear cut will and name a competent executor.
There are also some common wrong assumptions that people have regarding post death scenarios. For instance in case you have not made a will, it is wrong to assume that the surviving spouse/parent would take all the deceased spouse's property, especially if the children are young. That is not the case. In the case of a Hindu, equal division is made between the wife, children and mother. With the break up of the joint family system, it is wrong to assume that if anything happens to you then the family will take care of your offsprings, no young couples with children must have wills which specifically name the proposed guardian. If significant assets are to be committed immediately at death to the direct benefit of your children (as opposed to their surviving parent), a Trust is the way to go.
To get started, one doesn't need stamp paper, simple paper will do. Secondly it is preferable that the document is typed so that no words are open to debate. Also ensure that the will is drawn in a language familiar to the testator. The witnesses are not needed while drafting it, but only at the time of signing it. Make them sign not only on the original but on the copies as well and each should state his name, address and occupation when signing. And how should you select the witnesses? Anybody of sound mind and body will do. Registration of a will is also not necessary, though it is prudent to get it registered(at the registrar of Documents). An unregistered hand written will signed by two witnesses is equally valid. The only basic requirement is that the Will maker must have "testamentary capacity." Under the law, this requires that the Testator be of "sound mind," he must only be aware of the nature and extent of his property, and of the "natural objects of his bounty." If typed, the Will must be signed in the presence of two (in most states) witnesses, who must sign in the presence of the Testator and each other. In a nutshell, the parties affirm that all of them are within sight of each other, that the Testator is of sound mind, knows he is signing his Will, and has asked the witnesses to so attest.
Next include all details in the will. Do not leave anything open to interpretation or unsaid. For example, if you expect your faithful servant to get a pension even after your demise, till he or she is alive then mention it so. Disinheriting a close family member? State your reason. There is no need to register the will. If you do so, making changes is a tedious procedure since you will have to inform the sub-registry about changes to be made. To ensure the will's validity, keep the original with your lawyer, a copy with you and one with each executor. Make sure that the witnesses sign each and all four are sealed.
So when should you plan a will? In personal financial planning, an individual is generally considered to have three life cycles: Accumulation cycle -- ages 25 to 45, Conservation cycle -- ages 45 to 65, Distribution cycle -- ages 65 and above. During the accumulation cycle, you should be sure that you and your spouse each have a will and that each of you has executed a durable power of attorney. Your will should name an executor for your estate. It is critical that in your will you name a guardian for your minor children. Additionally, you need to make financial arrangements to provide the guardian with sufficient monetary resources to take care of your children. The accumulation cycle is viewed by many as the period for life insurance for yourself and spouse, whether working or not. Because for instance if a non working spouse does die then the costs of child care and home support will place an additional financial burden on you which can be covered had the spouse been insured. Nominations to insurance policies must be clearly done so as to avoid ambiguity. Most young couple should go in for Wills which are "mirror image" of the other. Usually, people want it this way: "If I die first, everything goes to my spouse. If my spouse has already died, all to the children, in equal shares. The Wills are mirror-images of each other. This includes naming of Executor - usually the spouse, but there should be an alternate, too.
In the Conservation Cycle the need for insurance continues, particularly while your children are still in school. But now another factor comes under consideration. Your retirement plan. It is critical during this period that you coordinate the benefits under your retirement plans. This involves selecting payment options and designating beneficiaries under those plans.
In the Distribution Cycle your aims change to how much can you safely give away after providing adequately for medical and retirement, so as to avoid estate duty for your heirs. You could also possibly do a rethink on insurance policies which can be "cashed in" and switch to other investment vehicles. Once a will is made, one can keep changing it and reviewing it. In fact, it makes sense to renew it every so often if your investments keep changing, have depleted or you have come across a windfall. Then again, you may get married or divorced. One of the beneficiaries may have passed away. Or there may be a birth and you would like to make an addition. The latest will supercedes all other previous documents. Also wills supersede nomination, incase if you name someone else in the will, he supercedes the nominee. Basically a will should be written and is interpreted as that it was intended to be the final expression of the Testator's wishes as to the disposition of his/her property to take effect upon death. If there is a Will, distribution of property comprising the decedent's probate estate is ordered under the terms of his/her Will. If there is no Will, the person is supposed to have died interstate and then the property is distributed according to the succession law which is under the personal law.
Personal law of Hindus varies from Muslims and other communities, then the division is done as per the succession law. So in order to buy a little peace in the 'after life" make a will in this life!
Aru Srivastava
SOME LEGAL TERMS
Testator: Person writing the will.
Codicil: A minor change in the will.
Intestate: When an individual passes away without drawing up his will.
Beneficiaries: Individuals mentioned in the will as inheritors.
Living will: A document stating specific instructions as guidance to the
family regarding the withdrawal and withholding of medical care, such as the use or
removal of life-sustaining procedures, in the event of terminal illness or injury.