Without a Will, your assets would devolve on your Class 1 heirs
Even if your chosen successors are co-owners in your assets, you may want to write a will to prevent your Class 1 heirs from staking claim. Without a will, their rights would be as good as your chosen heirs
I retired about 12 years ago. My main asset was a house, which I sold 5 years ago and invested the proceeds in bonds and mutual funds, so that my regular income could be taken care of. All these investments are held jointly by myself, my wife and my only daughter. Apart from some personal effects and these investments, we have no other assets to bequeath. If any of us pass away, the others can continue to use the investments without any hurdles. Is it still wise for us to write a Will, or can we do without executing one?
For the purpose of this response, I have assumed that you are a Hindu.
Since you have indicated that you liquidated your house and put the monies received from the sale thereof into financial assets, which are held jointly by you with your wife and daughter, I have assumed that such personal assets are in fact your sole property and the names of your wife and daughter are added for convenience. Accordingly, you would have full disposing power over such assets. However, in the absence of a Will, a person’s assets, whether movable (financial) or immovable, would devolve on his/her heirs in accordance with the personal law applicable to him/her. In India, the personal law of a person is determined by the religion of the person. If, for example, you are a Hindu, then in the absence of a Will, your assets would devolve upon your Class 1 heirs. These would include:
—son of a pre-deceased son
—daughter of a pre-deceased son
—son of a pre-deceased daughter
—daughter of a pre-deceased daughter
—widow of a pre-deceased son
—son of a pre-deceased son of a pre- deceased son
—daughter of a pre-deceased son of a pre-deceased son
—widow of a pre-deceased son of a pre-deceased son.
Therefore if it is your clear intention that your assets should devolve only on your wife and daughter equally, so as to exclude the other Class 1 heirs, it would be advisable to make a Will. Also, it is possible to bequeath a specific asset to a particular person or alter the percentage in which your heirs would inherit an asset.
A Will would have to be executed in the presence of two witnesses who are competent to contract, and your attesting witnesses must attest (i.e., sign) the Will as the attesting witnesses, in the presence of the testator (person making the Will) and in the presence of each other, after they have seen the testator execute the Will. Apart from this, there is no legal formality for executing a Will. Registration of the Will is also optional.
My mother has left her property to me and my sister through her Will. The assets consist of two houses (one has been bequeathed to me and the other to my sister), some gold jewellery (for my sister), and money in two bank accounts (for me). Both of us agree that we don’t have any need for these assets and would prefer to donate a part of it, and leave the rest for our respective children. My sister has a 12-year-old daughter and my two children are 5 and 10 years old. What would be the process to: 1) Take over the assets, and then 2) name our (at present) minor children as the beneficiaries, instead of us?
Since the assets, that have been bequeathed to you and your sister by your mother under her Will, would vest in you and your sister on her demise, you and your sister would first have to transfer the assets into your respective names based on the proportion/percentage in which the assets have been bequeathed. Thereafter, you may choose to transfer the assets to your minor children or donate it to charity. This can be done either through your respective Wills. If done during your lifetime, it would need to be done through a registered gift deed, or in the case of moveable property can also be through delivery of possession. However, if you execute a deed of gift (which would be mandatory in the case of immovable property), you would be liable to pay stamp duty, depending on the stamp laws of the State where the assets are located and/or where you execute the gift deeds.
Marylou Bilawala is partner, Wadia Ghandy & Co. Advocates, Solicitors and Notaries
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