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Succession Planning

Disadvantages Of Not Writing A Will

Let us now discuss some of the disadvantages of not writing a will: 

 

  1. When you die without writing a Will (called “intestate” in legal language), your assets are distributed as per Succession Laws applicable to you. India is a diverse country with different Succession laws governing different religions and also different assets. 
  2. Such succession laws have a fixed proportion to distribute properties to family members which may not be as per your wishes. There could be chances of delay in distribution of properties and may lead to legal cases, disputes amongst family members and not to forget financial distress can also happen till the time beneficiaries get possession of assets.
  3. The Court would decide who would look after minor children.
  4. There will be no executor or guardian and appointing another person potentially has the risk of delays, additional expenses and even a loss.
  5. There could be bickering and fighting within the family over assets turning the environment acrimonious. Your children and/ or spouse would be left fighting legal battles. Certain assets that you wanted to keep within the family, maybe sold.
  6. In case of a common disaster, where your whole immediate family passes away; your assets may get passed on to relatives whom you may have never spoken to or you were not on good terms with, as against considering passing them on for charity.
  7. Transmission of moveable and immoveable may be expensive and time consuming.

Points to consider while writing a Will:

  1. A Will can be prepared by anyone who is 18 years of age, of sound mind, and free from any coercion, fraud and undue influence.
  2. Use the title 'Last Will and Testament Of (state your name here)' to make it clear that the document is your Will and legal.  Herein, state your full name, current address, and also mention that you are of sound mental health and under no pressure from any one to make the Will.
  3. Name an executor - a person who will secure permission (called probate) from Court for distribution assets as per Will. A trustworthy person should be named as an executor and you must get their permission before nominating them. This is because if they refuse to become an executor later, then there might be no one to execute the Will, leaving it to the court of law to appoint an administrator. Also, it will be a good idea to inform the executor and family members about the location of your Will in order to avoid confusion later.
  4. A will can be handwritten or typed out.Stamp paper is not necessary. You can write a Will on a plain paper, sign and date it with minimum 2 witnesses and keep it in a secure location. Also, it is not compulsory for one to register a Will with the Registering Authority, but it is advisable to get it registered to avoid litigation later on.
  5. While bequeathing assets to any minor children, make sure to appoint a guardian for the assets until such time the minors reach an adult age.
  6. It is extremely important for a Will to be simple, precise and clear. 
  7. It is possible to make changes or minor alterations in a Will if you want to do so (this is called ‘codicil’). However in case there are too many or major changes, it will be better to make a new Will altogether.
  8. Always put a date on your Will. If more than one Will is made then the one having the latest date will supersede all other Wills.
  9. Each page of the Will should be serially numbered and signed by the Testator (that is the person making the will) and the Witnesses. This is to prevent the Will being substituted, replaced, or pages being inserted by people intending to commit fraud. At the end of the Will the Testator should indicate the total number of pages in the Will. Corrections if any should be countersigned.
  10. While writing a Will along with the laws of the country, one's religion also plays an important role.  For example, in case of Hindus, any assets that have been acquired by oneself can be bequeathed as per one’ wishes. However any inherited property cannot be transferred according to your wish, as the laws of inheritance would apply.
  11. Although it is possible to draft a Will on your own, it is always better to take the advice of a trusted lawyer or online will making websites while writing a Will. This will reduce any chances of misinterpretation or litigation from relatives.

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Units 8/25