On March 9, 2018, the Indian Supreme Court passed a landmark judgement allowing individuals to set up a living will. For the uninitiated, a living will can be made by a person, in his normal state of mind, seeking voluntary euthanasia in case of terminal illness, if he or she reaches an irreversible vegetative state. In other words, the Supreme Court has now allowed an individual (while he can) to decide for himself whether he wants to live in a vegetative state or end his agonies.
This development brought to mind a crucial issue. For parents, the next most precious thing, or sometimes even more precious, than their own lives is their children. While the new law seeks to give power to individuals over their own lives, no law is required to be made to help a parent decide who should take care of their minor children if they are gone before the kids became adults. All that is required is for the parents to take the initiative and write a will.
Do it early: Start drafting a will as soon as you become a parent. For parents, making a will in a timely manner is perhaps the single most important thing they can do to ensure that their child is taken care of by people they would choose, should anything happen to them. While most parents ensure that they nominate their kids for various investments and insurance policies, hardly any attention is paid to nominating a trusted person to take care of their kids in case of their permanent absence. These discussions with close family members like parents or siblings are generally avoided as it is almost taken for granted that these members are obligated to take care of their kids.
Ideally, parents need to be 100 per cent sure that the person (or persons) required to take care of their kid in their absence is doing it out of natural affection and a sense of duty, rather than merely fulfilling an obligation. Thus, writing a will should be viewed as a window of opportunity to make the right choice and name the person who will protect your children. Before you put the person's name in the Will, it is advisable to have a serious discussion with him and take his consent for this immensely important role.
Another point that you need to think about deeply while choosing the guardian is his location. It is typical in today’s times for siblings or parents to stay in different towns or even states. In such cases, you should take into consideration whether it will be feasible for the kids to relocate, as this could have an impact on their schooling. You should also take into account the distance at which the guardian lives from other members of the family, and other important people in the kids' lives.
Most people are aware that in the absence of a will, the properties of the deceased need to be Court-administered for distribution to the legal heirs. Similarly, in cases where no family member is keen to take up custody of a minor kid in the absence of their parents, the Court may have to intervene to identify the guardian, keeping in mind the best interest of the child. To avoid such a situation, it is prudent to have your decision documented in your will.
Both the parents should completely agree on the choice of guardian so that the same name is included in both their wills. This will help to avoid unnecessary problems later. It is also prudent to think and name an alternative guardian in the will, should the first named be incapable of taking up the responsibility at a later date for any reason. While most parents would immediately think of their own parents as the guardians for their children, it is advisable to consider their age and general health, and whether they will be able to handle the physical demands of growing children. Parents having more than one child should also consider whether the chosen guardian will be able to take care of all the kids.
Who will take care of the finances: In your absence, someone will be required to look after the children’s finances. Most financial plans today take into account the education, hobbies and career start-up needs of children while deciding how much life insurance the parents should buy. However, the insurance money, when realised also needs to be managed prudently so that the various education-related needs of the children are met.
The same personal guardian can be named as the financial guardian as well, or you can choose a different person. This decision should depend entirely on how comfortable the personal guardian is in dealing with financial matters. Even if you have the slightest doubt, think of a separate financial guardian.
Appoint a manager for properties: Another important consideration for parents is to appoint a trusted and competent manager for the detailed management of the immovable property that they will bequeath to the minor child. Real estate management is not easy even for seasoned investors. This issue becomes especially important in cases where the personal guardian is located in a different town or city and the child has to relocate.
You can use your will to nominate a long-term manager for the properties. You may even decide whether the properties need to be liquidated at certain life stages and the proceeds utilised for the child’s benefit.
The need for young parents to create a Will cannot be over emphasised. Those days are long gone when people visited their lawyer to write a will 10-15 years after retirement. Increased job stress, unhealthy lifestyles, uncertainties revolving around work and leisure-related travel, among other factors, should make a parent regard the will as a means to plan ahead and make sure that their kids are well taken care of in all circumstances. A will can help ensure that things will happen the way you want them to even if you are not around.
Points to remember when writing a Will
- Nominate a trusted person to take care of your child in your absence
- More than one person may have to be nominated, in case you have more than one child
- This person should have strong natural affection for the child and should look after your child out of a sense of duty
- If the personal guardian is not financially savvy, you may have appoint a separate person as the guardian for financial affairs
- A trusted and competent person may also have to be appointed as the manager of the properties that you will bequeath to your child
The writer is a Sebi-registered investor advisor