Writing good Wills, and other ways of passing on your wealth

Death is inevitable but people often disregard the importance of ensuring in their lifetime that their wealth smoothly passes on to their heirs or whoever they wish in an efficient  manner. From the Ambanis and the Wadias to the friendly uncle next door, the problem is rather universal.

If people don’t leave wills, heirs — often siblings — will remain engaged in property squabbles all their lives. Take the highly publicised case of Vasudevan, 83, a resident of Mysuru, who has filed a petition with the Madras High Court, claiming a share in the property of former Tamil Nadu Chief Minister late J Jayalalithaa. He claims that he is the son of Jayamma, the first wife of Jayalalithaa’s father, Jayaram. The former CM had not left a Will bequeathing her vast properties to anyone.

In another high-profile case, thespian Sivaji Ganesan’s daughters Shanti and Rajvi have filed a complaint with the Madras High Court against their siblings, actor Prabhu and  producer Ramkumar. They reportedly claimed that their brothers have seized their assets through a fake will, and transferred properties to the names of their respective sons.

These two cases are the most recent ones involving the legal heirs of celebrities engaged in a dispute over inheritance. Years ago, Dhirubhai Ambani of Reliance Industries Limited did not execute any Will for all his properties and this led to deep differences between Mukesh and Anil Ambani that ended up cleaving the conglomerate.

Earning sufficient money, accumulating wealth and living comfortably may be important. But, it is also equally important to pass on your wealth to your heirs and others in a structured and proper manner.

Types of assets

Firstly, you need to know that there are different types of assets. The assets may be movable, like bank deposits, company deposits, government bonds, investment in small savings schemes like National Savings Certificate, Senior Citizen Scheme, Public Provident Fund, different post office schemes, company shares in demat or physical form, or even personal assets like gold jewellery, investments in mutual funds, life insurance schemes etc.

Or, they may be immovable properties, like land, buildings, houses etc. People may also have investments in businesses, or they may have loaned money to others. All these assets constitute a person’s wealth and it is necessary that they be passed on to their heirs.

The mechanism to pass on wealth can be done through joint accounts, nomination, assignment, gifts, trusts and Wills. Based on the nature of asset, one may have to choose a particular channel.

Joint accounts

Banks provide different types of joint operations like either or survivor, anyone or survivor, former or survivor etc., which can be used to pass on the wealth. In the same way, one can have joint accounts for company deposits, post office schemes etc.

Nomination

Bank deposits, company deposits, post office deposits, PPF, NSC etc., allow a nomination facility which can be used to easily transfer the balance in the account after the death of the account holder. But, one must remember that nomination is only an arrangement to allow the nominee to receive the proceeds and not to appropriate them. This means that the nominee has to pass on the wealth to the legal heirs.

A single nomination in a demat account can be used to transfer all the different securities in the demat account to the nominee.

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Assignment

Bank fixed deposits can be given to someone as security by way of assignment. In the same way, insurance policies can also be assigned as a security whenever one borrows from some other institution.

The institution on which the notice of assignment is issued, i.e., the bank or an insurance company, will note the notice of assignment and pay the amount to the assignee on the maturity of the deposit/policy. Assignment once given cannot be cancelled or modified without the consent of the assignee.

Gifts

A gift is the transfer of a certain existing movable or an immovable property made voluntarily and without consideration (without receiving any money in return). During one’s lifetime itself, any item can be gifted to others. It will be subject to gift tax to the person who receives the gifts based on the nature of his relationship with the person who is the giving the gift and also the amount of gift.

Trusts

A trust is an entity created to hold assets for the benefits of certain persons or entities. The person who manages the trust and often holds the title on behalf of the trust is called the trustee. A beneficiary is a person or an entity who receives the benefits in the form of the assets being held. The owner of the property can create a trust and pass on the wealth to the trust.

Will

Basically, a Will is an instrument by which a person makes a disposition of his/her property to take effect after his/her death.

Making a Will may be a better way to minimise the dispute among one’s legal heirs, though, even after its execution, there may be disputes as in the case of Sivaji Ganesan’s family. It is also not necessary that one must execute a Will only when he has a huge property. Even when one is owner of any landed property or any movable property like jewels, investments etc., it is better to execute a Will so as to avoid disputes in future among legal heirs or family members.

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Advantage of making a Will

The major advantages of making a Will are:

It ensures that after a person’s death, his/her assets pass on into the hands of the beneficiaries as per his/her choice without any legal impediments. The personal wishes of the deceased get honoured.

In the absence of a Will, the laws of inheritance come into play and the property is passed on to the legal heirs, as laid down by the law in a most impersonal manner without taking into account the personal wishes of the deceased. A Will can avoid disputes among various claimants in future. If a Will is properly executed, the scope for any dispute and litigation will be minimum.

Requirements of a valid Will

There are basic requirements for a valid Will. There should be intention of the testator to bequeath his property. It should be a voluntary act of the testator. The testator should be legally capable of making the Will.

What to remember

The executor of the Will must keep in mind:

It takes effect only after the testator’s death. It can be cancelled or altered any number of times. It should be a written declaration, signed and attested as required by law. It is for a property or wealth of the testator already available for disposition.

There is no prescribed format for a Will as per law. However, it should be properly drafted so that in future it should not be subjected to different interpretations. It’s best to take the help of an advocate. Many formats are also available on the internet which one can use.

Though registration of Will is not mandatory, it is preferable, so that its authenticity will not be questioned at a later time. It is not necessary that one must reveal the details to the persons in whose favour the Will is created; one can maintain absolute secrecy of the contents of a Will.

Absence of a Will

If one dies without making a will, then he/she is said to have died intestate. In this case, the property will be inherited by legal heirs, according to law of succession like the Hindu Succession Act etc., as per the religion of the person.

(The writer is a retired banker.)