Drafting a Will

Bydeb

Drafting a Will

IMPORTANT CONSIDERATION BEFORE MAKING A WILL

Making a Will is often accompanied by morbid thoughts of death. However, it is necessary to be sure of what one wants to write in a will as these are decisions one does not want to leave on the State. While making a Will, one must make careful and deliberate decisions with respect to their children, business and assets.

The following are some things one must be clear about before they make a Will.

  • APPOINTING A LEGAL GUARDIAN:  Appointing a legal guardian become most important especially in case of minor children and, in most unfortunate cases, when both parents die or the surviving partner is incapable of taking adequate care of the children. The following few considerations should be kept in mind while deciding on guardianship:
  • Whether the adult chosen would be able to provide with stable and continuous care
  • How is the relationship between the potential guardian and the children
  • If the adult is morally fir to take care of the children
  • Whether the adult has the financial capability of supporting the children in the long run

Whether the adult would be willing to take care and nurture children that are not her/his own. The guardian should be named in the will only after the following considerations are answered satisfactorily.
 

  • CHOOSING THE BENEFICIARIES: The most common type of beneficiaries are the spouse, the children and other close family members. However, a person may choose to dispose of her/his assets in a non-conventional way to include dear friends and other people that may have played an important role in her/his life. The following should be kept in mind while deciding the beneficiaries:
  • One can only will property that is self-acquired.
  • In case of ancestral property, no Will will apply and the property will devolve as per the provisions of the Hindu Succession Act.
  • In case the beneficiary is obliged to take care of any other dependant of the testator, it needs to be considered whether such beneficiary will do a fair job of it.
  • In case of remarries testators, the rights of the previous spouse and children borne from that marriage should be identified clearly.
  • In case a part of the proceeds has to be given to charity, the same should be specified in the will and not left to the whims and fancies of the beneficiaries.
  • Cost of probating the will and other legal costs of mutation of property, etc. may be specified to be taken care from the willed property before the division of property takes place.
  • A specific clause should be added identifying the beneficiary in a case where a movable property may not have been specifically identified to be will. This will reduce wasteful litigation between the beneficiaries.
  • DECIDING ON THE EXECUTOR TO EXECUTE THE WISHES: An Executor is a trusted person chosen by the testator in whom the property vests before it is handed over to the beneficiaries. It is the job of the executor to make sure that the wishes of the testator are respected in full and the property is devolved without any inconvenience to any of the beneficiaries. Below are some handy tips that should be considered before zeroing in on an executor:
  • The executor should be trustworthy and organised.
  • Family members are usually excluded in order to not increase the pain of dividing up the assets in the time of grief.
  • The executor should be able and willing to discharge her/his duties.
  • The executor will have the responsibility of notifying the government agencies, locating the beneficiaries and handling the court probate process.
  • The testator could also share the location of important documents, including appraisals, warranties, passwords to bank, email and other digital accounts.

IMPORTANT POINTS THAT A WILL SHOULD INCLUDE ARE:

  • a personal property inventory with descriptions and names of beneficiaries;
  • relationship of the beneficiaries with the testator;
  • directions for maintenance of property;
  • in case there are pets, persons responsible for taking care of them.
  • SOUND MIND: A person should be of ‘sound’ mind when s/he makes a will. This means that they understand:
  • What is a will;
  • Their relationship with the beneficiaries;
  • How much property they own;
  • And how it should be distributed.

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