Take family's feedback, appoint responsible executor when drafting a Will

But revealing its entire content to successors can prove counterproductive

For all those who possess assets, which they want transferred smoothly to the next generation, writing a Will is a crucial but often-overlooked task. Through this document, a person can ensure that his assets are distributed among his heirs in the manner and proportion in which he wants to. A Will helps avoid conflict among successors over assets. It also ensures that a person’s assets don’t lie forgotten and unclaimed.       

A Will should be written at the free will of the testator (the person writing the Will) and should be witnessed by at least two persons. Also, an executor should be appointed for it. An important issue here is the extent to which the family should be involved in the process.

While drafting the Will

Keep your family in the loop: The Will is a means to provide financial support to the spouse, children and grandchildren. While you need not tell them about all its provisions, you should keep them informed about the whereabouts of the document and your broad intentions. A key benefit of discussing the Will with the family is that one can explain the intent behind the decisions being made. This reduces the chances of family members contesting it after the testator’s lifetime. Once they know his wishes, it will hopefully lead to them respecting it. “The family’s participation also provides the Will-maker with insights regarding which assets each family member wants to inherit. They may also suggest liquidation of certain assets or winding up of some of the businesses that they do not wish to inherit,” says Namita Agarwal, assistant vice president-succession planning, Emkay Wealth Management.

Divulge, but within limits: A Will is a private document. The testator should be discreet regarding how much of its content he divulges to his family members. “If any of the family members is being excluded from the Will, then generally that information should not be disclosed upfront. However, in such a scenario, a reason for such exclusion should be briefly provided in the Will,” says Rajesh Cheruvu, chief investment officer, WGC Wealth.

If details are divulged, it could lead to family members, who perceive themselves to be shortchanged, building pressure on the testator to change his mind. “A common reason for keeping the Will confidential is that a person’s estate plan may not match the expectations of his family members. They may then begin to exert pressure on the Will-maker to change it. It could also lead to strife among family members,” says Agarwal.

Appoint an executor: Besides keeping the family informed about the whereabouts of the Will, the writer should also instruct members regarding how the Will should be executed. A trustworthy exector should be appointed, who is not a beneficiary of the Will. He should also be told about the Will, and what is expected of him in his role as an executor. However, one should avoid revealing the contents of the Will to him either.

According to Sandeep Narlekar, MD & CEO, Terentia Consultants, the close family members should be informed about the person in whose possession the Will has been kept. “Inform at least your spouse, a close friend and your children that you have written a Will and its whereabouts. You should also tell them who the executor is and who holds a copy of the Will,” he says.

Registration is useful: Registering a Will is not mandatory under the law, but doing so can be of help to the successors. “Registering a Will proves its genuineness and timing of execution, especially where one envisages the possibility of a dispute. However, non-registration does not lead to the presumption that it is not genuine, provided it has been drafted properly with the help of a legal advisor. Further, if an earlier Will was registered, it is prudent to register subsequent versions also, although this is not legally a necessity,” says Cheruvu.

Illustration: Ajay Mohant

After writing the Will

While writing a Will is a step in the right direction, it is not the end of the game. You need to follow it up with a few more steps.

Update your Will: With changing circumstances, you may also need to update your Will. Your assets-liabilities mix could change, and so could that of your family members. Take one example. You may have planned a large mansion for your three children and their families. However, if they later decide to live separately, then you may consider updating your Will so that they are paid for their individuals houses. “Changes in assets, asset distribution, addition or deletion of beneficiaries can prompt you to change your Will. You can also add a codicil to make changes to it. Especially if you are changing the beneficiaries and the distribution of your wealth, it is advisable to redraft it,” says Narlekar.  

Marriage automatically revokes an earlier Will. “The Will should be revisited every time there is a change in your personal circumstances, such as marriage, re-marriage, divorce, birth or adoption, the death of a spouse, or of an executor. Under the Indian succession law, getting married automatically revokes your current Will, which means you must write a new one,” says Cheruvu. Changes in the law and your finances may also require alterations to the Will.

Update nominees and executor: Often testators mention that their assets should go to the person whose name is mentioned as nominee. In such circumstances, one should update the nominees from time to time.

If a person has appointed a family member or a friend as the executor of the Will, and the latter passes away earlier, then it becomes imperative to draft a new Will specifying a new executor.

Align with changing goals: Changing financial goals of family members can also necessitate changes to the Will. For example, you may have set aside a large sum of money for your grandchild’s education. However, if she finishes her education while you are alive, the Will can be modified and that money allocated for some other purpose.

Create a foolproof estate plan
 
 

• While preparing a Will, make a complete inventory of your assets
• Documents related to both financial and real estate related assets should be organised at this stage
• If there are title issues with a property, deal with them or else your successors could end up paying the price
• Select responsible and trustworthy advisors and helpers, which could include a possible guardian, executor, and power of attorney agent
• Especially if the estate is large, seek the help of experts like an estate planner, a lawyer and a tax expert