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The Way to a Will – Ensuring Peace after Your Departure – I

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By Anurag Sangal

The Covid-19 pandemic has impacted the demand and supply of everything that you can think of; and while most of them have reduced drastically, one thing has seen its demand rise exponentially – The Personal Will.

We are all going to die someday, but most of us don’t like to think about that. The proverbial preamble to every Will – “….though keeping good health but life being uncertain …..” has become a stark reality as the Covid-19 pandemic reminds us of the fragility of life and pushes more and more people to write their personal Wills. We Indians are emotional people; and associating a Will with death, tend to think of writing a Will as morbid whereas it is actually an act of love for the people we care about, our heirs or others.

A Will is a uniquely peculiar piece of paper. It is nothing more than what you wish or desire, duly put down on paper. It does not bite; innocuous and ineffective in your lifetime; just listing who gets what out of your assets; changeable at your desire; coming into effect only after you die. It derives its teeth and power only upon your death; especially if there is more than one legal heir where the distribution of assets can be quite acrimonious.

But trust us Indians to get emotional even when executing a Will and leaving a mess for their heirs/beneficiaries to clean up; at times creating acrimony where none existed in the first place! Some of the common catalysts for this are wanting absolute equality; leaving everyone a piece of every piece; emotions at a premium over functionality; secrecy; inability to let go and wanting to be in control and play Boss even after you are gone! Thus, effectively negating the proverbial reason given in the Will – “….and to avoid any misgiving and misunderstanding and/or dispute amongst my family members….”.

Before we learn what to do to make an effective harmony creating Will, let us quickly resolve what all is not to be done for any reason whatsoever.

i) It is alright to not distribute perfectly equally; prefer equitable to absolute equality. In case the assets are in such shape that their division into precisely equal 25% each in case of 4 beneficiaries is not possible, then it is preferable to divide the assets into a % which is +_ a few % between the beneficiaries with clear demarcations instead of leaving cross holdings.

ii) There is generally only one ancestral house and/or a premium asset that everyone wants a piece of; and there are countless cases of the Will trying to accommodate every beneficiary towards with even a minor piece of that asset. A house does not remain a house if it is not hospitable to the family who lives there; giving a bedroom to one and the bathroom to another; or having to build a wall of partition right in the middle of the precious courtyard can only be a laughable – and troublesome – desire.

iii) Abhor secrecy. Someone should know you have executed a Will; lest it does not come up at all as the only person who knew its existence and location was you!
Once these irritants are out of the way; let us proceed to write an effective harmony inducing Will with these simple steps –

i) Housekeeping of your assets and liabilities viz., list the immovable and movable, financial and book assets like loans given, etc., in full detail with location, address, identification of the asset. Make sure that none of your financial assets are in your single name alone; it entails a hugely unnecessary and tedious process; just add a joint-name and a nomination to each. Typically, there have been cases where long time investments are either forgotten or impossible for the beneficiary to trace in the absence of details. “My residential plot….” is not good enough; give the location, address, size, title deed reference, etc. It is important to know what you have before you decide what to give!

ii) Identify your beneficiaries, i.e., whoever you wish to bequeath your assets to viz., legal heirs or others e.g., parents, spouse, children, servants, associates, philanthropic causes and their organisations, etc., with their full name, address, contact details, relationship, etc., must be fully mentioned in the Will. You wouldn’t like that your intended beneficiary is not found only because of incomplete and/or confusing identity details!

iii) Decide on distribution as per your free will without any pressure and influence and put it to paper in the simplest language possible without any room for any ambiguity and/or more than one way to understand it. It is always good to distribute without any cross holdings and/or joint ownerships as far as possible leaving one asset to one beneficiary only. If imperative, you can say that “my residential plot…..” or “ my equity shares…..” must be sold and the proceeds be added to the pool for distribution.

iv) Synchronising your assets with your distribution is perhaps the most important tool for everlasting harmony. Imagine that while you Will your specific Bank FDR to your daughter while it is jointly held and/or nominated to the son! Legally speaking, if made out of your own funds only, the son is only a custodian of the FDR and is mandated to receive the proceeds from the Bank as per joint holding/nomination and hand over the proceeds to the daughter as per the Will; the Will decides the ownership and supersedes any other form for temporary custodianship. But why create this could be unsavory situation? (To be continued)

(Anurag Sangal is a Senior Chartered Accountant, prominent Educationist and Citizen Activist)