We inherit the estate from our family in accordance with the applicable laws of inheritance. A Will allows us to exercise discretion in who will be the legal heir, how much share in the estate each of the legal heirs will inherit and also allows us to exclude a legal heir completely (in certain exceptions).
Making a Will should be a simple process using straight and easy language. A Will can capture certain eventualities such as a beneficiary predeceasing, choosing one beneficiary over another or bestowing certain assets to one beneficiary who may be more deserving than the other in a class of legal heirs and thereby ensuring effective succession planning. Complex inheritance terms such as providing for dependent beneficiaries who may get a limited right to use and not dispose of property are best covered under a trust, and a testamentary will is a good option to explore
A Will would usually comprise of the following:
1. Executor;
2. Assets and liabilities;
3. Beneficiary; and
4. Witnesses
1. Executor
A Testator (a person who makes the Will) can appoint one or more executors in the Will. The role of an executor begins upon the demise of the Testator by assessing and consolidating the assets for the benefit of the beneficiaries under the Will. The appointment of an executor, though not mandatory, is an important aspect of Will and should be thought through keeping in mind the capability of such a person to perform the role.
An executor is expected to distribute the assets of the deceased amongst the beneficiaries. Moreover, he is authorised to collect and realise the estate of the deceased and pay the debts. The Executor is empowered to file a petition to obtain probate (proof) of Will from the court of law.
In case the Executor is incapable of acting or refuses to act as one, the Court appoints an Administrator at the instance of the interested persons/beneficiaries.
2. Assets And Liabilities
All immovable assets should be stated with clear instructions on who will be the beneficiary as well as a contingent beneficiary. General listing of moveable assets (including digital assets, email/social media accounts/blogs, content, pictures) is sufficient unless there are large value moveable assets in the estate which should then be specifically mentioned. The beneficiaries also inherit debts.
3. Beneficiary
A beneficiary is a person who is named by the Testator in his will to receive the benefits and in some instances the debts of the Testator.
4. Witnesses
The Testator should execute the Will in the presence of two witnesses, and such witnesses should in turn also sign the will in the presence of the Testator. Selection of witnesses should be made keeping in mind that they may be required to testify before the court of law on the proper execution of the Will by the Testator.
Additional aspects of effective will which are not mandatory are registration and videography.
It is not compulsory to register a Will, but a registered Will has benefits in relation to mutation of the name of the new owner, accessibility, cannot be destroyed or stolen or tampered with.
During the lifetime of the Testator, the Will can be examined only with his consent. Only after the death of the Testator the certified copy of the Will, maintained with the office of Registrar can be given after producing the death certificate of the Testator. Any changes to a registered will should also be registered. It is interesting to note that a Will can be registered, even after the Testator dies, by the Executor or the beneficiaries.
