Neha Pathak, vice-president, head - trust and estate planning, Motilal Oswal Private Wealth Management cites the example of a businessman who had named his son as the nominee in all his investments. Since the son was managing all the father's investments it was convenient. But since the businessman passed away without making a will, now his daughter is finding it difficult to prove that she, too, has a right over her father's investments. In fact, in the case of the father's equity investments, the daughter may not get anything, since the nominee has more right over the investment than the legal heirs. "The daughter has to get a probate or a succession certificate to prove her claim. This is cumbersome and can get stuck in court," says Pathak.
In another case, a flat was inherited by a son after the father's death. Since the father did not leave a will, the son got the flat transferred to his name after paying stamp duty at current market rates. This was to avoid any claims in future from his sisters, though they had no objection. If the father had made a will, this could have been avoided. The other option was that all the heirs could have first taken the ownership and then gifted the same to the son by paying a smaller stamp duty. But this process is more complex and would have taken more time.
Why do you need a will?
"If you make a will you can distribute the wealth as per your wish and avoid many hassles. It particularly becomes more complicated if there are immovable properties involved and there are disputes on the values of such properties," says Ashish Kehair, EVP and head - private wealth and international businesses, ICICI Securities.
If there is no will and if there is more than one legal heir, then the distribution of the asset is done as per the succession laws prevailing for the community to which the deceased belonged. For this the heirs will have to follow a court procedure, which is cumbersome. Since succession laws state that property has to be distributed equally among all heirs, distributing it can become complex if the properties have different values. By making a will you can specify which property should go to which heir.
What is the format for a will?
There is no prescribed format. It has to be properly signed and attested for it to be effective. It should be initialled by the testator(one who makes the will) at the end of every page and next to any correction and alteration.
It can be written in any language. Ensure that the words are clear and unambiguous so that the intention of the testator is clear. It need not be written on stamp paper. The wealth dealt with in the will should be described clearly and also the person to whom the bequest is being made should be clearly defined without any ambiguity. Every person executing a will should sign it. Under certain conditions it can be signed by some other person in the presence of testator and by his/her direction, under certain conditions, says Gautami Gavankar, principal advisor - estate planning, Kotak Mahindra Trusteeship Services.
Who can be the witness?
The will should be attested by two or more witnesses, each of whom has seen the testator sign the will. However, remember that a legatee or beneficiary (the person who inherits all or part of the estate of the deceased under the will) or his/her spouse must not attest a will as a witness as such bequest to that legatee is void.
Should a will be registered?
Registration of a will is not compulsory. However, the registration of a will provides evidence that the proper parties had appeared before the sub-registrar and the latter had attested the same after ascertaining their identity. If a will is not registered, it does not raise any question about its genuineness. Whether registered or not, a will must be proved as duly and validly executed, as required by the law. Hence, payment of stamp duty is not necessary.
Who can be appointed as executor?
The testator can appoint as executor of the will anyone he/she trusts. Such as family member, friend, lawyer, chartered accountant, and so on. The executor is in charge of carrying out the instructions in the will relating to distribution of the property and other assets.
Can a will be contested in court?
A will can be contested in court. That is why registering the will makes it more effective to stand the scrutiny of court.
Can a will be changed?
A will can be changed anytime during the lifetime of the testator.
What are the charges for writing a will?
There are no charges for writing a will unless you register it, in which case you will have to pay stamp duty.