Things to consider when writing a will - Kotak Bank
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India is on a dash of economic growth. With a 9% annual growth rate, India is predicted to join the elite group soon after surpassing Japan and many European countries. With one of the highest numbers of millionaires that get added to the existing list every year, legal complications surmounted by this wealth are becoming an increasing cause for concern. With everybody joining the race to becoming rich as soon as possible, a sudden need of legal implications has descended upon the financial world. The Indian mentality of saving for their children and generations to come, has made will creation all the more crucial.

What is a will?

A will is a legal declaration of one's wish regarding the distribution and management of one's possessions. These possessions can be house or other property, fixed deposits, artifacts, jewellery and other precious possessions. The one who gets his will made is called a testator. The ones who inherit the will are called the beneficiaries.

A will can be made by self or through a lawyer or banker. A will written by self is considered legal only if it abides by the state law. Very few banks provide the services of will creation. However, it is advisable to create one's will with the help of the banker as he is well aware of the testator's wealth portfolio and also well versed with efficient distribution of assets for optimum asset allocation benefits. 

For a will to be recognized as a legal document, it should be signed by the testator in the presence of two witnesses. The name and signature of the two witnesses should also be attached to the will.

Why is a will necessary?

  • Manage possessions - A well designed will not only help in managing your assets during your lifetime but also protect your estate from any future contingencies.

  • Distribute possessions - A will is primarily made in order to distribute a testator's priced possessions amongst the people he wishes to. It ensures that your hard earned money does not become a reason of rift among your near and dear ones.

  • Assign guardian - A will is also designed to allocate a guardian to a minor or dependent who is the legal responsibility of the testator. The guardian will have to look after the dependents once the will comes into action.

  • Appoint power of attorney - A person can act as the power of attorney if the testator's will mentions so. He/she gets this power once the testator is not able to continue the administration of his assets in a sound manner.

It is very important for a will to be well written. In case of failure to comply to any of the prerequisites of a will, the will may be considered void in legal terms. Thus one has to take care of a few do’s and don’ts which help the testator draw a well exhaustive document.

Do's of writing a will

  • Express your wishes clearly - While writing a will, do not leave any scope of misinterpretation. Quantify your assets clearly and state your wishes regarding each asset clearly. Make sure the will is written in basic fonts and legible. The language of the will should be crisp and understandable so that there is no room for any confusion or revolt.

  • Choose your witness wisely - Make sure to sign your will in the presence of 2 witnesses who will in turn sign on your will and pledge that the will made by you was made in full consciousness and sound mind. In order to keep the witnesses unbiased, make sure you choose them from the people who will not benefit from your will.

  • Trusted Executor - Assign a trusted executor for your will. In case of your death or inability to carry out operations, this executor will execute your wishes as stated in the will. A trusted executor will ensure that all the elements in the will are managed and distributed as per the wishes of the testator. An individual, lawyer or a bank can act as an executor in exchange of a nominal fee. It is better to appoint a lawyer/banker as an executor as they ensure unbiased execution of one's will.

  • Take care of your will - Once the will is made and signed, a major task that remains for a testator is to store his/her will carefully. A will should be kept at a place where it can be easily found by the executor only after the death of the testator. Also it should be properly guarded, so that it does not get misplaced or stolen.

  • Review your will - It is important to review one’s will from time to time and make any required changes. There may be an addition or subtraction to one’s possessions which needs to be incorporated in the will. Also in case of marriage or divorce, birth or death of beneficiaries, a will of the testator should be updated.

Don'ts of writing a will

  • Prepare your will in haste - Writing a will is a serious job! It helps you secure the future of your near and dear ones. Do not prepare a will in haste. Never prepare your will when you are too happy or too hurt by your external circumstances. Keep an open mind while charting out your assets, beneficiaries and their stakes. Do not write a will under pressure. Take your time, think wisely and allocate your assets as well as responsibilities to the people who you think will best fulfill their responsibilities and take care of your hard earned money.

  • Use DIY kits - Today many websites provide you with ready DIY (Do It Yourself) kits. These kits provide a testator with a generic form, which he has to fill and print out the results which effectively becomes his will. These kits may fail to take into account laws of various state jurisdictions or may not be completely in line with what a testator has in mind. It is not one of the best tools to avoid estate tax. Also, these DIY kits are not competent for the complex Indian property as well as relationship structures.

  • Make an alternative version of will- In case a testator decides to discard his previous will and make a new version, make sure that the old will is properly destroyed. This is important so that the old version of the will is not misused by anyone. Also, people like to make a more impersonal alternate will for their family members. However, this practice is not advisable as it may create contradictions and confusions. In such situations, it sometimes takes years to successfully execute a testator's will making a lot of people unhappy.

  • Risk your children’s future - It is best advisable to leave a share for your spouse as well as your children separately. Leaving everything to your spouse, may leave your children with nothing. In case of the spouse remarrying, your entire asset base may then pass on to the spouse’s new family. It is also not mandatory that if your spouse does not remarry, all the assets in your spouse's name will go to your children after his/her death. Thus, it is advisable to leave a certain share of your assets for your children beforehand.

In case there is no will made, an individual’s property is managed by government administrators who execute the orders of the law. The government decides who the beneficiaries of the individual are and distribute the estate accordingly. Hence, it is important to chart out a will beforehand, assign an executor and save your family from the hassles of government distribution. So, go ahead, secure your loved ones and leave the execution on experts who have their best interest in the well-being of you and your dear ones.

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Disclaimer: This Article is for information purposes only. The views expressed in this Article do not necessarily constitute the views of Kotak Mahindra Bank Ltd. (“Bank”) or its employees. The Bank makes no warranty of any kind with respect to the completeness or accuracy of the material and articles contained in this Article. The information contained in this Article is sourced from empaneled external experts for the benefit of the customers and it does not constitute legal advice from the Bank. The Bank, its directors, employees and the contributors shall not be responsible or liable for any damage or loss resulting from or arising due to reliance on or use of any information contained herein. Tax laws are subject to amendment from time to time. The above information is for general understanding and reference. This is not legal advice or tax advice, and users are advised to consult their tax advisors before making any decision or taking any action.