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Frequently Asked Questions on Will, Trust & Power Of Attorney
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succession planning FAQs
It’s the process of legally preparing to transfer your wealth and responsibilities to the next generation.
It ensures your legacy is passed on smoothly, without disputes or legal complications.
Not at all—every family with property, assets, or dependents should have a plan in place.
When someone passes away, his or her property must somehow pass to another person or institution. A proper estate plan involves strategies to coordinate what would happen with your home, investments, businesses, life insurance, employee benefits, retirement assets and other property in the event of death or disability. Important, basic estate documents include revocable trusts, wills, financial powers of attorney, medical directives, living wills and nominations in your financial assets including Bank Accounts, Fixed Deposits, Demat Accounts, Life Insurance Policies.
Many individuals don’t engage in formal succession planning because they don’t think that they have “a lot of assets” or mistakenly believe that their assets will be automatically shared among their children & spouse upon their passing.If you don’t make proper legal arrangements for the management of your assets and obligations after your passing, the intestacy laws will take over upon your death or incapacity. This often results in the wrong people getting your assets.
If you pass away without establishing an estate plan, your estate will undergo probate – a public, court-supervised proceeding. Probate can be expensive and-tie up your assets for a prolonged period before your beneficiaries receive them. Even worse, failure to outline your intentions through proper succession planning can cause family chaos as well unnecessary stress and expense.
Simply, your estate is everything you own, anywhere in the world, including: Your home or any other real estate that you own, Your business interests, Your share of any joint accounts, The full value of your retirement benefits like Provident Fund, Gratuity etc.,Any life insurance policies that you own, Your personal effects like jewelry, vehicles etc.
If you have children under the age of eighteen, you should designate a person or persons to be appointed guardian(s) over their person and property. Of course, if a surviving parent lives with the minor children (and has custody over them) he or she automatically continues to remain their sole guardian. You should name at least one alternate guardian in case the primary guardian cannot serve or is not appointed by the court. You can appoint a Guardian for your minor child through a “Will” or through a “Letter of Guardianship”.
A comprehensive estate plan should generally include the following documents which are based upon your family and financial situation: Will: A will is a written document disposing your property/assets as per your wishes after death. A Will can also specify other wishes such as the type of funeral you would like, organ donation, a guardian for your children etc. However, there must be a declaration with respect to property without which it ceases to be a Will.Financial Power of Attorney: A financial power of attorney allows someone to carry on your financial affairs if you become disabled. Without a properly drafted power of attorney, it may be necessary for someone to go to court to have a guardian or conservator appointed to make decisions for you during a period of incapacitation. This guardianship process is time-consuming, emotionally draining and very expensive.Letter of Guardianship: You should appoint a Guardian for your minor children through a ‘Letter of Guardianship’.Revocable Trust: Like a will, a revocable trust is a legal document that provides for the management and distribution of your assets after your death. A revocable trust has certain advantages when compared to a will. A revocable trust allows for the immediate transfer of assets after death without court interference. It also allows for the management of your affairs in case of incapacity, without the need for a guardianship or conservatorship process. A revocable trust can be used to hold legal title to and provide a mechanism to manage your property. Typically, you (and your spouse if desired) will be the trustee(s) and beneficiaries during your lifetime. You also designate successor trustees to carry out your instructions in case of death or incapacity. One of the great benefits of a properly funded revocable trust is the fact that it will avoid or minimize the expense, delays and publicity associated with probate. Pour Over Will: If you have a revocable trust, you also need a pour-over will. For those with minor children, the nomination of a guardian must be set forth in a will. The other major function of a pour-over will is that it names an executor and allows the executor to transfer any assets owned by the decedent into the decedent’s trust so that they are distributed according to its terms.
If you already have an estate plan, it should not be considered permanent. Conditions, as well as your desires, may change. Estate plans should be reviewed at least every two-three years but, additionally, any important change in your life demands immediate review.These changes might include: Birth, death, marriage, divorce or disability of you or a beneficiary Large increase or decrease in the net worth of you or a beneficiary Substantial change in the type of your assets Purchase or sale of a business Change of residence to another country Change in tax & succession law.
When a loved one passes away, his or her estate often goes through a court-managed process called probate or estate administration in which the assets of the deceased are managed and distributed. If your loved one owned his or her assets through a properly drafted and funded revocable trust, it is likely that no court-managed administration is necessary. The length of time needed to complete probate of an estate depends on the size and complexity of the estate as well as the rules and schedule of the local probate court. Every probate estate is unique, but most involve the following steps:Filing of a petition with the proper probate court Notice to heirs under the will and/or statutory heirs Petition to appoint a personal representative (or executor) for the estate Inventory and appraisal of estate assets by the personal representative Payment of estate debt to rightful creditors Sale of estate assets, if appropriate Final distribution of assets to heirs
Many people have financial accounts in joint names thinking they are finding a way around succession planning or maybe just for easy access for their children or spouse to help them. This if often done, particularly with the elderly to add children or trusted friends to the account for convenience in paying bills or other reasons. The general view is that with joint property, when you die the asset will go directly to the other joint tenant(s).What most people fail to realize is that this could lead to unintended or unexpected results. Disputes, including litigation, are common between the estate of the original owner and the surviving joint tenant as to whether the survivor’s name was added as a matter of convenience or management or whether a gift was intended. Another common mistake is that the person has a will thinking that the asset will pass according to the will, but title is everything and if the account is joint, joint holder thinks the will is meaningless. A common situation is when one child is on the account, but the parent wants to leave the account to all their children. You really need to understand the consequences of each property title and its effect to have a good estate plan. As per the Law adding a Joint Holder in an account allows the other co-holder to step into the shoes of the first holder and operate the account but does not make the co-holder as the absolute owner of the account. So, Joint Accounts can at best provide ease of access to your assets not ownership rights. So, you need to create a Will to pass the assets that you own after you pass away.
QUESTIONS ON WILLS
Will is a document that details specific directions on who will receive your property after your death. It names a personal representatives or executor to oversee the implementation of your will. It names guardians or conservators who will care for your dependents and any property of your dependents. It can also name trustees, who will manage property you direct to be held in trust. You can also detail your wishes for the care of your pets upon your death. After your death, your agent or executor is required to file the will with the court for possible probate. Simply put, probate just means the need to prove the authenticity of your will. Your executor is also required to pay legally enforceable claims such as debts and taxes on your estate, as well as take care of the distribution of property.
If you die intestate (without a will) the succession laws go into effect. In the absence of a Will, your assets will be disposed according to the Succession law applicable to you. I.e. The Hindu Succession Act if you are a Hindu, Buddhist, Sikh or Jain. The Indian Succession Act if you are a Christian or Parsi and the Muslim Succession Act if you are a Muslim. These Succession laws specify what proportion of assets will be passed on to stipulated family members. This disposition may not be in accordance with what your wishes may have been. A Will also prevents unnecessary family discord and disputes. That’s why creating a will is so important — you will have peace of mind knowing your heirs will be taken care of.
A Nominee will receive the benefits from a bank a/c, insurance policy etc on the owners death. However, the nominee does not become the rightful owner unless he is the legal heir. He receives the proceeds only in capacity as a trustee for the legal heirs. The only exception is in the case of the shares of a company where the rights of the nominee to the shares override the rights of the heirs to whom the assets have been passed on.
In law, any person above the age of 18 years and of sound mind is allowed to make a Will.
Any person above the age of 18 must make a Will. In today’s world of uncertainty, it is wise to make a Will to ensure your assets will go to the people you choose and prevent any family disputes. Parents of young children can also ensure that the interests of their children are taken care of in the way they would have liked.
All the above are NOT mandatory. It is however beneficial to have the Will registered to avoid the questionability of the Will’s genuineness.
A Will must be dated, A Will must be signed A Will must express a desire that the testators (person creating the Will) wishes must be carried into effect after his death. There must be a disposition of property. For example, If a Hindu testator gives his wife the authority to adopt without giving anything else in his properties, it is NOT a valid Will. A Will must be attested by two witnesses. (It is advisable that the witness is younger than the person making the Will.)
An Executor is the person who will carry out the wishes as set out in the Will. It is his duty to disburse the assets to the beneficiaries as stated in the Will. It is not mandatory to appoint an Executor. However, if no executor is appointed by you, the court will appoint an Executor for the Will.
No, it is not mandatory for a Witness to read the contents of the Will before signing. By signing the Will, the witness only confirms that you have signed your Will in his/her presence.
No, a beneficiary cannot be a Witness. A witness’s spouse must also not be a beneficiary in the Will.
Yes, A beneficiary in your Will can act as Executor.
Yes, a Will allows you to mention how you would like your digital life to be dealt with. A will allows you to give a person the authority to access your online accounts.
It is not enough to say that a heir should not inherit any part of the estate. That property must be Willed to someone else. If there is no other person inheriting that property then it will go the heir as per the succession law even though you have stated that it must not go to that heir.
Assets that you have forgotten to mention in the Will would be passed on to your legal heirs as per the succession law applicable to you. Or in case you have a residuary clause in your will then according to that clause.
Yes, a Will can be changed any number of times. You can change or revoke your Will by executing a new Will, revoking the earlier Will, destroying the old Will, making a codicil or by registering the new Will (if the old Will has been registered).
A Will is always revocable even though the testator may declare it irrevocable.
A will must be kept in a safe place to prevent the Will from being tampered with and also prevent any misuse of the information contained therein. It is recommended to keep the Will with a company like WillEffect offering custodian services to ensure that the Will is kept in a fire-proof and water-proof safe and confidentiality is maintained. This will also ensure that a disgruntled beneficiary in your Will does not destroy the Will. In the event that happens, it will be deemed that you have died intestate (i.e. without a Will). Your assets will then be disposed to your legal heirs as per the applicable succession laws. The beneficiaries must be informed about the place the Will has been kept.
A will can be cancelled/revoked by making another will. The latest Will will by default make all previous wills invalid. The Will can also be cancelled by tearing it or revoking the Will by some writing.
The testator (person making the will), 2 witnesses (need not be the same two persons as the Witnesses on the Will), the original Will and a doctors certificate stating the testator is of sound mind will be required for registering the Will. The Will has to be registered with the Registrar/sub-registrar of a Local court. A registration fee will be charged.
A Will that is made to take into effect only on a certain contingency. Its validity will depend on that contingent event occurring. For example, Mr. A executed a Will to be operative in a particular year, i.e. if he died in that year. A lived for more years after that year. The court held that it should be deemed that he died intestate, as A did not express an intention that the Will should be valid even after that year.
A Living Will is a declaration stating the persons wishes regarding the use of life prolonging medical treatments if he/she is not in a condition to communicate his/wishes to the family or medical practitioners. It does not dispose property nor is it operational after death like a Will. It must be noted that a living Will is not legally enforceable in India. It only provides guidance to your loved ones and near of kin by stating your wishes regarding the administration of medical treatment for crippling illnesses which lead to fear of an un-meaningful life prolonged through medication and treatment which can be painful, stressful and at times very expensive without desired outcome.
📝 Wills & Trusts Explained
A Will takes effect after death; a Trust can operate both during your life and after.
A Will gives you control over who inherits your assets and helps avoid future conflicts.
Yes, you can revise or rewrite your Will at any point in your lifetime.
Yes, but registering your Will adds legal protection and authenticity.
QUESTIONS ON Power of Attorney
A durable power of attorney is a document in which you appoint an agent to act on your behalf and make decisions on financial matters. The document needs to clearly state what powers your agent has while you are incapacitated. For instance, writing checks, depositing funds, making financial decisions for your business, etc. Keep in mind that all powers of attorney expire upon your death, so you should make sure you have a trusted agent or representative in place when conservatorship or guardianship proceedings begin.
🛡️ Specialized Legacy Planning
It’s a trust designed to safeguard your daughter’s assets post-marriage with legal safeguards.
Yes, we specialize in securing smooth transitions for family-run businesses.
Absolutely—our online services are tailored for NRIs with Indian assets.
It’s a customized trust that ensures lifelong financial and legal security for your special needs child.
📄 Legal Process & Support
It’s a legal document that authorizes someone to manage an estate without a Will.
Yes, our expert-led online process ensures accuracy, privacy, and legal compliance.