Blogs Featured

Will is Wealth Planning not Death Planning

Will is more likely taken as an emotional term than a legal term. People generally misunderstand writing Will with writing a Death Certificate. Will is just a part of wealth planning and not death planning. Somehow the word ‘Will’ is associated with death.

Wealth planning is so crucial in today’s dynamic World. We hire wealth managers so that we don’t leave any corner of opportunity for creating wealth. Then why we miss on the future of this hard earned wealth. The absence of will after our death leaves our property and loved ones in trouble and sometimes in wrong hands as well.

Why Will is such a sensitive topic and not treated like a regular wealth planning. Why is will compared or correlated to death? People are very happy while discussing wealth planning and are so uncomfortable while discussing Will planning. Will is nothing but a mere estate planning to safeguard our hard earned wealth and gifting the same to our loved ones as per our will and wish.

Many of us postpone Will writing as it sounds like a tangible reminder of our mortality. Some feel writing a will relinquish the ownership of our property. Some due to laziness or discomfort of thinking of own death delays it. Many will relate misconceptions are more influenced by films where we have been watching from our childhood, how people kill their parents for execution of the will.

Somehow talking about will gives a morbid feeling, and hence it is never looked in a right attitude. There is a myth that if someone tells you to make a will, the person thinks that indirectly you are telling him that his end is near or that you are eying his property.

In fact, Will is the most important document that you ever write, because it allows you to select the persons who will receive what you own when you die. It allows your loved ones to enjoy your property peacefully as per your wish. Will help to avoid the dirty fights among siblings, relatives, nominees, friends, servants, caretaker, etc.

Only elderly need to have a will is the biggest misconception. In fact, each and every adult need to have a will. With so many incidences happening around us like the earthquake, terror attack, accidents, sudden death, health issue, viral health problems, etc we are aware how uncertain is our life.

In fact, it is more important for parents of minor children to have a will, even if they don’t have significant assets. If such minors do not have a proper will, the government decides their guardianship.

It is always wise even for adults without families to have a Last Will for their hard earned home, car, bank account, etc. In order to make sure that your estate is handled according to your wishes, and that your money is given to a friend, charity, or other organisation of your choice.

Especially in India people take things easy and do not seem to give will-writing any priority which is unlike people in western countries. Even in America, 60% die without a Last Will, leaving the government to decide how to divide their estate.

Awareness on the importance of succession plans, like will-writing and the opening of trust account needs to be given greater attention along with wealth planning. Statistics shows that awareness of such matters among many countries is still very low and how many lack even plain understanding on the importance of succession planning.

If you don’t have a Will in place, you can’t select the recipients of your property and the state Government you reside in will determine how your property is divided. Also, it is important to review your Will every five years to ensure that it’s up to date and still reflective of your future wishes.

Some people have the wrong mentality to adopt will-writing only after falling sick or bed-ridden. This approach should change because taking up early planning can safeguard the wellbeing of families. All misconceptions and apprehensions about Will will go once people get to know the importance of Will.

Especially in the case of land or house property, the society will not transfer the flat without a Will, nomination and tax paid certificate. Many times, a prospective buyer will not buy a flat or land, if the holding is not clear and if the property had not been cleanly transferred and if there are disputes between nominees and legal heirs. It becomes very difficult to sell such properties. Now-a-days people own 4-5 flats in such housing societies in India.

Many housing society flats have inheritance issues held up due to lack of proper Will/nomination. Housing society may ask for succession certificate before issuing a no-objection certificate (NOC) to sell a flat owned by a member, who has died intestate, especially flats situated in Maharashtra in a society registered under the provisions of the Maharashtra Co-operative Societies Act, 1960 (MCSA). As per the MCSA and rules made thereunder, upon the owner’s death, the society must transfer the flat and shares in the society to the owner’s nominee(s).

A housing society registered under the MCSA will ask the legal heirs of a deceased member to produce a succession certificate before transferring the shares to such legal heirs only in situations where the deceased member of the society dies without making a nomination or no nominee comes forward for such transfer. In a situation where there is a nominee, the society will transfer the flat/shares in the name of such nominee and then normally leave it to the nominee to identify the legal heirs of the deceased to whom the flat/shares are to be transferred. To get a succession certificate is not easy, the legal hires have to spend up to Rs. 3 lac in a normal situation and it generally takes 2 years which can be avoided by Will.

The law regarding the ownership right of nominees to shares of a company is different from that of the law relating to flats in a society. As per the Bombay high court (in the case of Harsha Nitin Kolkata vs The Saraswat Co-Op. Bank Ltd, 2010), upon the death of the owner of shares in a company, the nominee in respect of such shares becomes their beneficial owner to the exclusion of all others including the legal heirs of the deceased.

Approx. Statistics of Will around the World

One in three people die in the UK without making a will, potentially leaving their family and friends nothing but acrimony, confusion and costly legal battles. Almost two-thirds (61%) of people not having a will, while one in ten of those with a will have told no-one else where it is.

The survey by Foresters Friendly Society and ICM found that a quarter of Brits have never thought about writing a will (24%) and a similar number (23%) think they are too poor to have one.

Nearly half of those aged between 55 and 64 have not made a will (46%) with over a fifth having never thought about making one (22%), while over one in eight (13%) are relying on self-written wills, the validity of which is more likely to be challenged upon death. Hence, it is better to write a will with a proper legal advice.

Most of the minor stand affected due to lack of Will. (77%) of parents with children under the age of five have not made a will with nearly half those who have (46%) not reviewing/updating it in the last five years. There has been a slight decline in the proportion of people saying they have written a Will, down by 1% on 2014 to 47%.

Few places in India, require the Will to be submitted to Registrar. The Registrar may ask the claimants to put an advertisement in the newspaper to ensure that they will not be contested. They may even ask the witnesses who have signed the will to come to their office and sign documents. After all this, and some court affidavits, the claimants have to pay the necessary tax to the state govt. which is hefty and based on property value. Only then will the legal heirs get their property. Will requirements differ from state to state and Country to Country? Hence it is advisable to consult a lawyer for writing a proper Will.

It is very easy to make a Will in India. Tough it is a legal document there is no legal or defined format. A simple template has been generally used for ages which are very logical and covers declaration by Owners, details of Properties, Ownership and signed appropriately. Will is a fluid document which has no effect until the person die. One can change it whenever he/she want. It also indicates what sources will be used to pay any estate taxes and debts that are due to the owner, and it names an Executor who will be responsible for the settlement of your estate.

Will is not only part of wealth planning but should be the first step of one’s  financial life. If a person dies without preparing a WILL in India, his/her wealth will be distributed as per ‘Hindu Succession Law’ (Government rules, on how wealth should be divided among family members). Laws of inheritance and succession, are complicated and diverse in nature and are different in the case of Hindus and Muslims.

The most important thought behind making a Will is the inconvenience caused to the family members. In the case of a dispute, your family members have to produce the proof of their relationship and also have to go helter-skelter to lawyers and spent money and energy. It is much better to gift your loved ones some time of yours and write a will for them. This will save them a lot of headaches.

By creating a wealth you safeguard your and your loved one’s future and by writing Will you avoid the hardship on your loved ones. Latest Will prevails over all the Will that you made in your whole lifetime. You can always add to the provisions or alter the document as your life evolves. It’s important to review your current Will every five years to ensure that it’s up to date and still reflective of your future wishes.

Hope people realise the Importance of Will and take it as part of wealth planning and no more consider it as any hardship or emotional burden.

Facebook Comments

About the author

Sajjala Patil

Sajjala Patil

Lawyer by profession. Love to think and pen it. Good listener and observer. Economics, Law, Culture, Science are favourite topics. Passionate about expressing own beautiful thoughts in poems and paintings.

Interesting updates directly to your inbox!

Join our mailing list to receive weekly updates from our website.

You have Successfully Subscribed!

Follow us on social media for interesting updates and support us!