Will Drafting

Having a plan to accumulate wealth is important but it is equally important to have a plan to distribute your wealth to those you wish to. Having an Will Draft in place helps you do this.

Writing a Will is the simplest form of Will Drafting.

With a Will, you can make proper arrangement for the protecting and preservation of your assets for the benefit of your family and loved ones. It helps you reduce a lot of hassles for beneficiaries and at the same time ensures that wealth is distributed in the right hands.

At ICICIdirect, we can assist you draft a Will by professional legal experts who have all the relevant experience and expertise in this field.

This service is available at a fee of Rs. 11,800 (inclusive of all taxes), to be paid upfront. For more details, mail us at wds@icicisecurities.com. We look forward to partnering you in fulfilling all your financial goals.

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ICICIdirect's Approach To Your Will Drafting

Will is the simplest form of Will Drafting. It reduces a lot of hassles for beneficiaries and at the same time ensures that wealth is distributed as per your wishes. Wills are very easy to make and can be hand written. All that is required is that you articulate your thoughts on how you want to dispose your estate and then get the will witnessed by two witnesses.

However as easy as it may sound, it is always advisable to get the draft approved by a professional lawyer.

We have tied up with one of the premier legal and regulatory information service providers to offer will drafting services
We will collect the requisite information from you in the form of a questionnaire over e-mail and arrange to get your Will prepared within 15 working days. Once prepared, the soft copy of the drafted Will will be sent to you through an e-mail

The service is available at a fee of Rs.11,800 (inclusive of all taxes), to be paid online through ICICIdirect.com or through NEFT or cheque favouring 'ICICI Securities Limited'

Articles

Will is a written document in which an individual specifies how his wealth should be distributed or utilised after his death. In India, it is generally noticed that people refrain from creating a will and usually tend to leave the future to fate. This is a thought that should be avoided for the benefit of your heirs.

When a person dies intestate i.e. in the absence of a will, intestacy laws are triggered. Intestacy laws are not concerned with whether you want to provide different gifts to different children, based upon their special needs or other factors. Intestacy laws are not concerned with whether your surviving spouse or partner needs your estate's assets in order to provide for his or her basic needs, while your surviving parents have no need for your money whatsoever. In fact, intestacy statutes don't care whether you even have a relationship with your parents or children at all. Intestacy laws also don't care about distributing your estate in a way that provides the maximum tax benefit to those who inherit your estate.

There are numerous such scenarios that might come up in the absence of a Will and that can lead to entirely unwanted, even tragic, outcomes. The succession laws in India are so diverse and complex that it will create unnecessary hassles for your surviving heirs and the costs incurred in terms of time and money will be immense.

The law of succession in India falls within the realm of personal law. Because of this, we have many different succession laws, each purporting to reflect the diverse and differing aspirations, customs, and traditions of the community to which the statute in question applies.

You have the Hindu Succession Act, the Parsi Succession Act, and the Indian Succession Act (which applies to Christians). As far as Muslims are concerned, the law of succession falls into two broad streams, the Shia law of succession and the Hanafi law of succession. Both these laws of succession form part of the common law of India and are recognised as having the force of law by virtue of the Shariah Laws (Application) Act.

Even when a will exists, to actually execute it, a probate is required.

Probate of Will - Probate means copy of the will certified under the seal of a court of a competent jurisdiction. Probate of a will when granted establishes the Will from the death of the testator and renders valid all intermediate acts of the executor as such. It is conclusive evidence of the validity and due execution of the will and of the testamentary capacity of the testator. Where a Will was executed by a deceased, succession to his property is regulated by the provisions of the Will. If an executor is named in the Will, he has to get the Will probated as it is mandatory under section 213 of the Indian Succession Act. After obtaining probate, it is the duty of the executor to carry out the distribution of the property in accordance with the provisions of the Will.

Probate can be granted only to the executor appointed under a Will as is provided under section 222. If no executor is appointed by the Will, anyone of the persons claiming a right under the Will can file a petition for obtaining letters of administration as is provided under section 219.

Probate can be granted only to the executor appointed by the will. The appointment may be express or implied by necessary implication. It cannot be granted to any person who is a minor or is of unsound mind, nor to any association of individuals unless it is a company satisfies the conditions prescribed by the rules made by the state government.

A probate differs from succession certificate. A probate is issued by the court, when a person dies testate i.e. having made a will and the executor or beneficiary applies to the court for grant of probate. In case a person has not made a will his legal heirs will have to apply to the court for grant of a succession certificate which will be given as per applicable laws of inheritance.

A trust can be a valuable Will Drafting tool in many situations, but many do not know exactly how creating a trust may benefit their estate. For the more affluent, who own businesses governed by families, a trust is a vehicle that provides effective and hassle-free wealth management, asset protection and tax efficiency.

First, creating a trust involves several people

Settlor - The person who has the trust created
Trustee - A person or business that manages the trust property for the benefit of the beneficiary
Beneficiary - The person named within the trust documents that will benefit from the trust

A trust is simply a legal arrangement in which the settler transfers ownership of property to the trust, the named trustee then manages and controls the assets for the benefit of the named beneficiary.

A living trust is a trust that is created while the settlor is still living, and in that case, they may also be the trustee as well as the beneficiary until a triggering event, such as their incapacitation or death, after which named successors take over. This allows a living trust to also act as a mechanism for managing finances in the event you can no longer manage them on your own.

Assets that can be transferred and owned by a trust include real estate, stocks, bonds, valuable personal property and businesses. A trust, in relation to an immovable property, must be in writing and registered.

A revocable trust can enable the settlor to exercise control over the property but can be prone to clubbing provisions under the tax laws. An irrevocable trust can provide safeguard against future creditor claims on the assets in case of bankruptcy, since the settlor ceases to have the title to the trust property, yet at the same time enable indirect control over the property through terms of the trust deed. This is one the prime benefits of a trust structure which allows for preservation of your wealth.

Case Studies

Know How To Ensure Smooth Transfer Of Your Assets

A perfect rainy day in July and Shyam Lal Jain was busy finalizing his books just before filing his tax returns at his Grant Road office in Mumbai. In his mid-forties, the self-made businessman, was chatting with Nandan, his tax consultant to explain how he had donated 1 lakh to a school and the same will bring him a tax break. Nandan readily agreed to rework the tax calculations and finished filing the income tax online much ahead of the deadline of the exchequer.

"I like your idea of donating money to the school," said Nandan getting ready to leave the office.

"School is a necessity. I plan to build one school using money I have earned over my lifetime," Jain said smiling at Nandan - his friend, philosopher, guide and also tax consultant.

"But have you planned for it? And how about your kids? How are you going to take care of them? God forbid, if you die before building a school how will it go through?" questioned Nandan.

For a moment Jain was speechless. He knew that creation of wealth is difficult. But now he has realised that conserving it and passing it on to someone is a more difficult job. "I have just plans but there is no concrete step I have taken towards them," Jain could barely manage to utter.

"If you are around I am sure you will do it the way you want to. But if you are not around, only a will can help you. If you know what you want to do with your wealth, why not consider making a will now?" suggested Nandan.

"Writing a will? That too at this moment? Do you think I am going to die tomorrow," Jain turned to grab a glass of water. "It is not about death. It is about ensuring one's wishes, even when one is not around. If you know the way you want to dispose off your wish, better prepare a will now. In simple words, Will is a written document in which an individual specifies how his wealth should be distributed or utilised after his death. And the best time to create a will is now – a time when you have wealth and know what you want to do with it. It is an extension of your asset allocation plan. It will take care of wealth allocation when you are not around," Nandan explained.

"But how do I write a will? Isn't it too complex a document to write?" Jain asked.

"Not really. A will can be written on a simple piece of paper. Contrary to many misconceptions, it is one of the simplest documents to write. There is no need to involve a lawyer as such while writing a will and it is not at all mandatory to register a will. You can start with a piece of paper and two witnesses. You just have to write down in clear words your wishes. Ambiguity of any type must be avoided at any cost while writing a will. Never use a word which has multiple meanings. Avoid using nick names and pet names in the will," Nandan was wearing his guide's hat now.

"Nandan it will be great if you can explain it with an example. But first let us grab a cup of coffee," said Jain. Nandan sipped coffee and started, "Assume you want to give all the gold jewellery kept in a bank locker to your younger daughter. The same should be mentioned in the will as —'I wish to give all the gold jewellery kept in the ABC Bank locker number LMN, Fort Branch, Mumbai, to my younger daughter –Her full name- who is also known as Pinki.' This means that your younger daughter will get only the gold jewellery in the specified locker. She cannot claim other articles kept in the locker if there is no such mention. She cannot also claim any other jewellery made of say Silver, if there is no mention to that effect. 'I wish to handover all jewellery to my younger daughter' is a summary statement and opens up a possibility of disputes." "You may write about conditional transfer of wealth. For example, you may choose to give the second house to your son, if he is married at the time of your death. But in no circumstances can you introduce immoral conditions or impossible conditions for transfer of wealth," Nandan added.

"That looks good. But where should I start?" asked Jain. "It is better to make a list of your assets and then allocate their ownership as per your wish. The will can be mainly contested on two grounds. One is the ambiguity and second is the possibility of making the testator – the individuals who gives away his wealth using a will – write a will using coercion or he being under a state of unsound mind. A clearly worded will does away with ambiguity. To deal with the second issue, you can choose for video shooting," explained Nandan.

"All that is fine. But who will execute this?" asked Jain. "Executor is a person who executes your will. Put simply, he will carry out all your directions and ensure that all your wishes are put into reality by getting the wealth transferred as per your will. Appointing an executor ensures that there will be smooth implementation of your wishes. It is better to appoint one who does not have a beneficiary interest in your wealth. In other words, do not appoint an individual who is given some wealth in your will. It is better to appoint a third party – preferably a friend or a distant relative – who is close to you and your family. Presence of an executor appointed by you not only ensures a quick implementation of your will but also brings down the disputes. You may choose to pay the executor for the execution of the will. But the same must be clearly mentioned in the will. The payout to such an executor should be clearly funded by the testator and the will must have a clear mention of the same. If you forget to appoint an executor, the court will appoint an administrator. The administrator appointed by a court may not be the person you would like to take care of your estate," Nandan replied.

"That sounds good. I would like to appoint you as the executor of my will. So dear Mr. Executor what else do I have to do?" said a relaxed Jain. "A will must be duly signed by the testator and by witnesses. Never get someone to sign as a witness to a will any individual who is also a beneficiary of the will. Legacy stands lapsed to an individual or his spouse, if he is a witness to the will. This provision is the outcome of conflict of interest. The one who attests the will knows the content of the will and this can bring in conflict of interest. Put simply, the witness to your will and executor of the will should not have a beneficiary interest in the will," Nandan explained it further.

"One last thing – what if I missed mentioning something in my will. Say, I forgot to write about one of my assets?" Jain raised his eyebrows. "You can appoint a residuary legatee. He is a person who will receive whatever not specified in the will but forms a part of your wealth or wherever the legacy has lapsed. For example, if the testator has not mentioned anything about his farm house in the will, and if there is a clear mention of a residuary legatee, then such farm house will go to him. Assume, the testator has mentioned that the flat in which he stays should go to his wife after his death. But it is found out that his wife is dead on the date of testator's death. In that case, the residuary legatee will get the flat. If the testator has not mentioned a residuary legatee in his will, all such assets and wealth will go to all the legal heirs of the testator," Nandan replied.

Nandan continued, "You may choose to update your will. You can change your will as many times you want. A new will automatically cancels the previous will. Updating your will is a must to reflect changes in your wish-list. For example, you may want to give some share in your wealth to your recently born grandson or you may want to give your recently bought car to your younger son. A simple and clearly written Will will help the executor carry out the testator's wishes.

So write one and relax." "Yes, I think, now is the time I should work on my will," said Jain thoughtfully.