What Is The Importance Of A Will In Estate Planning And What Should Be Considered When Drafting One?

In today’s world, succession planning is essential for everyone. Typically, individuals have movable assets like cash in savings or fixed deposits, foreign bank account holdings, and securities like mutual funds, bonds, and shares. Additionally, they may own immovable assets such as land, residential properties, and commercial units.

Says Arijit Sen, a Sebi-registered investment advisor and co-founder of Merry Mind, a Kolkata-based financial advisory firm: “Estate planning allows you to protect your assets from unnecessary taxation and loss, ensuring that your wealth is preserved for future generations. Estate planning can help you avoid lengthy and expensive probate proceedings, ensuring that your assets are distributed efficiently and privately.”

 Also Read: Who Are Legal Heirs Under The Hindu Succession Act? Eligibility And Exemptions

Any individual aged 18 or above and mentally sound can draft a will. It’s crucial to properly execute the will with two witnesses, nominees, who can be family members, friends, or third parties but not beneficiaries. Failure to comply with legal requirements when making a will can greatly disadvantage the beneficiary, akin to having a gun without bullets.

According to the law, the nominee acts as a trustee responsible for holding assets on behalf of all legal heirs. Many people mistakenly believe that appointing a nominee means they will be the sole beneficiary, but this isn’t accurate. It’s crucial to mention the nominee as a beneficiary in the will to avoid legal complications. The will must comply with relevant laws and regulations based on religion and domicile. If someone dies without a will, all legal heirs receive an equal share under Hindu Law. Therefore, creating a will allows for differential rights among legal heirs, such as specifying assets solely for the wife, as opposed to equal distribution among mother, wife, and children without a will.

Any individual can personally write their own will, even by hand. A will must clearly outline how assets will be distributed and to whom. The person who creates the will is known as the testator, who may choose to appoint an executor. The executor ensures the testator’s wishes are carried out and assets are distributed to beneficiaries according to the will’s instructions. When all necessary formalities are followed, challenging the will becomes difficult. The testator can modify the will as many times as desired during their lifetime. Additionally, the testator can utilize assets mentioned in the will in any way they wish before their death, with the will only taking effect after their passing.

Also Read: Does A Will Supersede Nomination

However, in certain Indian states, obtaining probate from the court is required for a will. This process typically takes around a year if the will is executed correctly and uncontested. A straightforward approach to managing succession is ensuring proper nominations and a will in place.

How to Write A Will To Avoid Ambiguity: According to financial planners, a will is an ideal way to avoid the delay of property succession and unnecessary disputes among surviving family members. An important point to note is that Will is not a static document, and it is vital to review and update it periodically to reflect changes in your circumstances or preferences. “There is no specified format for wills. But, to avoid litigation and disputes, the will should be written in clear and unambiguous terms. The intention of the testator is to be mentioned with clarity of thought, precision, and accuracy,” says Sen. 

Legal Views: According to legal experts, a will is essential for estate planning as it outlines the distribution of assets, appoints guardians, and designates executors. It provides legal validity to your directives and ensures that your loved ones are protected from the complications of intestacy. While drafting a will, careful consideration and attention must be given to uphold its legal validity. No room should be left for ambiguity in the distribution of assets and appointment of guardians and executors. Moreover, the will must be regularly reviewed and updated to reflect changes in circumstances and safeguard against outdated provisions.

“Further, guardians and executors must be carefully chosen to fulfill their roles - a must in a will. Tax implications must also be factored in. In today’s day and age, provisions must also be made for digital assets to address all of the estate comprehensively. Lastly, registration of a will, although not legally mandatory, must be done to ensure protection from future challenges to the will. With meticulous attention to these considerations, your will becomes a testament to your legacy and a beacon of clarity for your loved ones in times of transition,” says advocate Ravi Prakash, Associate Partner, Corporate Professionals. 

The purpose of the execution of a will is to avoid any future dispute in respect of the personal property of the testator. “There is no compulsion of a will deed being registered as long as it conforms to section 68 of the Evidence Act and 63 of the Indian Succession Act. A will can either be registered or unregistered. A will has to be attested by one or more witnesses for it to be presumed to be valid,” says Alay Rizvi, Partner - Accord Juris LLP, Hyderabad. 

The testator shall mention all the personal properties, whether moveable or immovable, to be executed on a stamp paper and in the presence of two witnesses, a doctor’s certificate to confirm that the testator is executing the will in a sound mind, name, and details of the executor, who will implement the will after the demise of the testator. After the testator’s demise, the executor can approach the competent court to initiate probate proceedings when the will is in question. 

However, according to legal experts, it is often assumed that a will should be made only when there are existing disputes between the children and family of a person or when one is of affluent means and has extensive assets to bequeath. This is a misconception, and it is advisable to make a will even if there are no disputes and even when one may have a single property to bequeath. “This is to be done to ensure that there is no ambiguity in who amongst the legal heirs/ legatees is entitled to an asset of the deceased. If a will is properly executed and is not ambiguous, it will put to rest any disputes between legal heirs/ legatees,” says Priyanka Desai, Partner, The Fort Circle.