Wills, Trusts and Succession Planning

By Poorvi Chothani, Esq. LawQuest, Mumbai

www.lawquestinternational.com

LawQuest 2009. All Rights are Reserved.

LawQuests Areas of Practice

Media, Technology and Entertainment Law
Intellectual Property Law Immigration Law (Global, US immigration and Indian

immigration)
Corporate and Commercial Law Dispute Resolution Real Estate Law Personal, Testamentary and Family Law Employment Law
LawQuest 2009. All Rights are Reserved.

Topics
Wills Trusts

Succession Planning
Business Succession Planning

LawQuest 2009. All Rights are Reserved.

General Rules of Succession Under The Hindu Succession Act, 1956

Daughter by birth becomes coparcener and has the same right as that of the son in the intestates property; Daughter is subject to the same liabilities as that of the son in respect of the intestates property Heirs related to intestate by full blood are preferred over half- blood relatives; Two or more heirs who succeed to the intestate property, shall take it is as per capita and not per stripes and as tenants- in common and not as joint tenants. A child, who was in the womb at the time of intestates death and subsequently born alive, shall have same right to inherit as if born before the death of the intestate.

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Intestacy

When a person dies without making a Will, his property devolves upon his heirs as per the laws of inheritance/succession applicable to him/her. When this occurs, the Intestates assets are frozen until a court appoints an administrator and they are then distributed according to a rigid legal formula. Until the administrator is appointed, it is possible that no income will be available for the intestates dependants and a legal battle may follow if the distribution is contested in court. Hence the possibility of any dispute surfacing between dependents could be greatly reduced just by drafting the Will.

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Intestate Hindu Male

Equal Share of the property devolves upon following persons: Mother being alive Widow; Living Son; Living daughter; Son of a pre-deceased son; Child of a pre-deceased son; Child of a pre-deceased daughter; Widow of a pre-deceased son; Son of a pre-deceased son of a pre- deceased son; Daughter of a pre-deceased son of a pre-deceased son; Widow of a pre-deceased son of a pre-deceased son.

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Intestate Inheritance Under the Indian Succession

a widow and lineal descendants (children and children's

children, born out of lawful marriages), if any, 1/3 of his property shall belong to the widow, and the remaining 2/3 shall go to the lineal descendants. no lineal descendants, but has left persons who are of kindred (blood relatives) to him, of his property shall belong to the widow and the other shall go to those who are of kindred to him. None kindred to him, the whole of the property shall belong to the widow.

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Intestate Christian

Widow / widower 1/3 of the property Lineal descendants equally to share 2/3. In the absence of lineal descendant, to all grand children, equally In the absence of grandchildren, to great grant children equally Lineal descendant of a predeceased child or lineal descendant of a predeceased child of a predeceased child if present division is based on equal shares, taking the predeceased child to be alive, and a downward distribution amongst the lineal descendants.

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Intestate Christian (cont)

With no lineal descendant:

Widow /widower 1/3 Father the Remaining Estate If Father is dead, to mother, sisters and brothersequally

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Intestate Hindu Female

Equal Share of the property to be divided between each of the following persons

Son Daughter Husband Son and daughter of predeceased son (equally together one share) Son and daughter of predeceased daughter (equally together one share)

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Intestate Parsi

Widow / Widower and Children get equal share In the absence of widow/widower or children each parent shall get a share equal to half of a Childs Share

Widow and children of a predeceased son, shall take the share of the predeceased son Share of predeceased daughter will be equally distributed to her children.

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Wills - Terminology
Will - The legal declaration of a man's intentions of what he

wills to be performed after his death.

Codicil - A supplement or addition to a will that explains,

modifies, or revokes a previous will provision or that adds an additional provision. A codicil must be signed and witnessed with the same formalities as those used in the wills preparation.

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Terminology (contd..)
Testator - the one who makes a will or a testament.
Executor - The person or entity named in a will who has the

responsibility of carrying out the terms of the will (that is, collecting the will maker's assets, paying the debts, and distributing the remaining assets to the beneficiaries)

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Terminology (contd..)
Legatee - Also known as a beneficiary. A legatee is a person

to whom a legacy is given by a last will and testament.

Administrator - A person appointed by a court to manage

and to distribute the estate of a person who has died without a will; and is distinguished from an executor of a will.

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Capacity to Make a Will

Anyone of legal age (18 years old) and sound mind can make

a Will. When you have property which you wish to distribute after of your death, you need to have will.
Under the Indian laws minors (below 18 years) and lunatics

(people of unsound mind) are considered incompetent to make a will

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Functions of a Will

Implement the wishes of the testator Distribution of the assets as per the testators desire Method disposing property Appointing executors, crating trusts and Appointing testamentary guardians of minor children Avoid inheritance disputes after the death of the testator A Will is a secret and confidential document that needs to be safe and accessible to the executor or next of kin.

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Essentials of a Will
Will should be
o o o

In writing; Signed by the testator; and Attested by two witnesses

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The Most Important Issue

To Ascertain Whether It Is In Fact The Last Will Of The Testator

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After the Death of the Testator

Obtain Probate if there is a Will

Executor Beneficiary Apply for Letters of Administration if there is no Will Heirs Court Appoints an Administrator Processing time About 6 months if the Will is not Challenged Indefinite if the Will is Challenged

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10 Tips to be Considered While Drafting a Good Will

Choose who draws up your will wisely Choose your executors well Appoint a default or substitute executor Appoint guardians Appoint trustworthy trustees /executors Make specific legacies Make sure you leave a residual legacy Save tax with a trust (no estate tax in India) Sign your Will Get it stored safely

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Should You Have A Trust?

Depends on the size of the estate and the purpose of the trust
A trust will help avoid a court hearing in the event the

testator becomes incompetent or are rendered unable to provide for yourself A trust also helps to provide for minor children, grandchildren, or relatives with a disability that makes it difficult for them to manage money

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Business Succession
Succession Planning for Businesses
o o o o o o To stay successful, Businesses need to define their objectives Separate family interests from business interests Incremental separation of management from ownership Creation of an environment of transparency and meritocracy Grooming talent Interaction between three groups of stakeholders: family managers, professional managers and family shareholders o Guide and supervise the executive management in the best interest of its shareholders

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Certain Points to Remember Before Planning Personal Succession

Obtain written consent of executor, trustee or guardian Be specific and provide comprehensive, identifying details It is a good idea to video record the process of executing your

will Copies of the recording should be given to decision makers Registering your Will is Optional Choice of witnesses Presence of Both witnesses not required but recommended

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General Tips

Making nominations (property, bank accounts, insurance policies and shares) Important - A nominee is only a trustee for legal heirs and the right of the legal heirs cannot be taken away by nomination
Seek professional advice Revise documentation whenever circumstances change

Find willing and capable trustees

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Family Office
Asset Reporting
Record Management Taxation

Legal
Private Equity Overseas Investments Alternative Assets

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Thank You
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