Estate Planning and Probate Law: Why Do I Need a Will?

A will is a formal intention by a written legal document which sets forth how you would like your property to be handled after your death. In addition, your will should specify guardians to take care of your minor children, establish trusts for your children’s benefit etc. Although,  you may draft your own will, the size of your estate, your asset composition and the complexity of legal laws involved with the valid execution of this Testamentary document i.e., will, may make it far too risky to attempt drafting a will without an advocate. If you make a mistake in drafting your own will, you shall be taking a risk of court might declaring your will invalid.

Who Needs a Will

Whether you are married, single, have minor children or own even a nominal amount of personal assets or property, you should have a will. In fact, every eligible adult should have a will or other means to control the disposition of his or her assets. Even people that have living trusts should consider preparing a will because, without a will, any property not named in the living trust will pass according to law of succession by inheritance, not necessarily in accordance with a person’s wishes.

Will Requirements

For a will to be valid it must be prepared, witnessed and signed according to specific procedures set forth under different laws including law of evidence. For example, under certain circumstances, a court may find that a will is invalid because it was not witnessed by two attesting witnesses properly, thereby causing assets to pass according to the law of succession. In other words, the property would be distributed, possibly even to unintended heirs, and would make no special provisions for personal property such as jewelry etc.

Your Children

If you have minor children, your greatest concern may not be who gets your assets, but rather, who will take care of your children. The courts are given broad discretion to determine who will take care of minor children if both parents die or if the surviving parent is unavailable. Even though the court has the ultimate authority to appoint a guardian, a will is the only way to tell the court who you want to raise your children.

Further, a will should set forth what assets your children will receive, how the assets will be distributed, and who will manage the assets until such time as your children are able to manage the assets themselves. Fortunately, a will affords you many options to control the disposition of assets to your children if you should meet with an untimely death. Through a will, you can leave instructions on how the property will be held and who will act as the guardian, trustee or custodian of that property. By establishing a trust for your children in your will, you can even condition when and how they will receive benefits.

Your Personal Representative

A personal representative is responsible for making sure property is distributed according to the deceased person’s wishes. A personal representative can be an attorney, an accountant or someone that you otherwise trust to handle your personal affairs. People often name their spouse, a competent relative or trusted friend as personal representative of their estate. An alternative personal representative should always be named, in the event that your original choice elects not to serve. If you fail to name a personal representative, the court will appoint one for you.

Will Requirement under Indian Laws

Any person over eighteen (18) years and who is of sound mind may make a will. Under Indian law, a will must be witnessed by two individuals. A will may refer to a list of property not specifically mentioned in the will as long as the list describes the items and the person who is to receive the items with reasonable certainty and is signed by the maker of the will.

Conclusion

Although you can legally prepare your own will, you risk having a court declare it invalid. Because the laws that govern wills are very complex, it is best to have a lawyer prepare your will. If you have minor children, are a business owner or want to manage tax issues, it may well be worth the cost of having a more complex will prepared. Finally, you will gain peace of mind knowing that your minor children will be taken care of according to your wishes.

About the Author: Legal Mind Ajit Kumar, Advocate & Mediator has been preparing wills, trusts, and estate plans for individuals from all walks of life. He can assist you in preparing anything from a simple will to the most complicated estate plans.