Digital wills: How to log out permanently?
By Nilofer D'Souza/ Forbes India
With more Indians having a significant online presence, it is high time that the law is changed to include digital wills
Gautam John, 32, is well prepared. On the professional front, he has done well. He dabbled in professions like law and even tried his hand at business, but stumbled onto Pratham Books and Akshara Foundation, where he works for the new projects division. On the personal front, he is all set to get married in January next year. And five years ago, he prepared himself for something else: Death.
He created a digital file that contains all his logins and passwords to all his online identities and accounts. He considers this his digital will and has given access to one trusted advisor. “My digital identities are extensions of my real world identity and post my death, I’d like them to be dealt with in particular ways,” he says. “Allowing a trusted advisor access to them is the only way to do that.”
John is right in thinking it may be the only way to take care of all things digital because today by Indian law, there is no room for a digital will. “There is no provision in the IT Act to write a will in a digital form,” says N. Vijayashankar, a techno-legal information security consultant based in Bangalore.
But the IT Act may not be the problem. “If a digital will has to have sanctity, there has to be an amendment in succession laws,” says Gopal Sankaranarayana, a Supreme Court lawyer. “At the moment, courts accept wills in writing and not digital wills.”
No one denies the need for digital wills, but no one seems to be doing anything about it either. “99.9 percent of Indians have not given it much thought,” says Kiruba Shankar, CEO, Business Blogging, a social media consultancy company in Chennai. “A digital will has two parts,” says Shankar. “One, a real will that you digitise with an online signature; two, digital assets which will add on to all your user names and passwords.”
This makes a difference to people like Shankar who have a significant online presence. He says, “I own about 40 domain names and at least a few of them are worth thousands of dollars.” Another online personality, Madhu Menon, a user experience specialist and chef, says, “It is something I have thought about, but I would like to postpone it because nobody would like to think they will kick the bucket in their 30s.”
Shankar says that he has been thinking about creating a digital will after a close friend of his was diagnosed with leukaemia and was given three months to live. Menon, however, questions the relevance of leaving his online work to family. He says, “Once I have earned my money for an article, what value will that have to anyone else?”
The valuation of your digital assets then comes into play and for Gaurav Mashruwala, a financial planner, it becomes very important. He says, “Access to your bank account is controlled digitally, but the content of that account is not digital.” Today, as more and more people conduct their financial transactions online, it is important to leave those user names and passwords with a trusted person.
But Sankaranarayana counters this thought process. He says, “When banks have to deal with several thousand crore sitting physically in accounts of deceased people today, where there is endless red-tape impeding the claims of their successors, how easily will they move to a digitised format?”
A few law firms that Forbes India contacted say they have not had any enquiries for digital wills and the ones that had received requests say it came from Indian couples returning from the US. Mashruwala, says, “I have had two clients out of the 90 clients under families [section] ask for a digital will.” To him, it means to include a line in a will giving one person the authority over online user names and passwords.
Online companies have a similar way of releasing a person’s account. For example, Gmail has a stringent policy to access a deceased person’s account. It says, “Any decision to provide the contents of a deceased user’s e-mail will be made only after a careful review, and the application to obtain e-mail content is a lengthy process.” Twitter, on the other hand, requires you to state your relationship with the deceased as well as a link to the username and public records of the obituary. Facebook has a page where it can be notified regarding a deceased person’s account.
While Facebook, Twitter and Gmail, are online services for your personal accounts, there are numerous Web sites that now provide services to give your loved ones access to all your online accounts. Passmywill.com , legacylocker.com and aftersteps.com are a few.
So, while you log in to live your life, you can also choose the way you log out.
Saturday, November 5, 2011
Thursday, August 4, 2011
Why you need to write a will
For the past six months, Delhi-based Padma Malhotra and her three children have been struggling to access what is rightfully theirs. They have been unable to lay hands on the financial assets of Malhotra's husband, who passed away in January. The emotional trauma of losing him was followed by despair at not being able to withdraw the money lying in his bank account or access his other investments. This upheaval has been sparked by a single act of omission on the part of Malhotra's husband-writing a will.
"My husband didn't leave a will and had not named a nominee," she says ruefully. So, she and her kids have been running around to prove that they are the only legal heirs. Malhotra's husband has a substantial amount of money in his bank account, but it cannot be withdrawn till the bank is satisfied that there are no other claimants. "We have submitted copies of the death certificate and our ration card as well as a letter of indemnity, but the bank is demanding more documents," says Malhotra.
In Noida, 73-year-old RR Grover is not leaving anything to chance. He has experienced at close quarters how problematic it can be if the head of the family dies without leaving a will. "I don't want my heirs to run around to get what is theirs. So I have drafted a will that spells out how the assets will be distributed among them," he says.
Writing a will
Any adult who wants to distribute his assets can write a will. "Whether you are a daily wage earner or a tycoon , you have the right to dispose of the assets you own according to your wish," says Rajesh Dalmia, a Kolkata-based certified financial planner. A will is an instrument that allows you to do so.
It is not necessary to write it on a stamp paper or even get it registered. You can write a will on plain paper and it will be as legally valid as one prepared by a lawyer. All it should do is identify you as the testator (or the person who is making the will), list out your assets and specify how these are to be distributed. Whether you type it out or write it down, it is a legal document as long as it is signed by you and attested by two witnesses.
"The only requirement is that the will should be legible. If a person is old and frail, he should avoid writing it himself and get it typed to avoid disputes in the future," says Amit Aggarwal, a lawyer with SNG & Partners, a Delhi-based law firm.
However, if there is a complication in the ownership of assets and wealth, you may need the help of a legal professional to draft the will. Such a person will ensure that there are no loopholes or ambiguity in the language that may lead to disputes later on. More importantly, he will make sure that the distribution is within the ambit of the law. "When it comes to making a will, the wishes of the testator should be legally enforceable. Therefore, consulting a professional on this matter is important," says Pavan Duggal, a Delhi-based lawyer.
Legal viability
A will cannot override the natural succession of ancestral wealth. A person cannot will away the entire inherited property. He can pass on only his share to anybody he wants, but the remaining property can be willed only to the legal heirs. Suppose a Hindu man inherits 50 lakh from his father. If he has four legal heirs, then he has only a 20% share in that amount. The balance belongs to the four heirs.
If you want to bequeath assets to people other than the natural heirs, you would need to mention the reason for doing so. This would foreclose the chances of any objection from other beneficiaries.
A will has to be attested by at least two witnesses. They should be reliable and preferably much younger than you are in order to ensure that they are alive when your will is being executed.
Sanjana Bali, a partner with KB Partners, a Delhi-based law firm, recounts a case in which the deceased had willed everything to one of his children. The other siblings filed an objection but the sole beneficiary could not prove the validity of the will because the witnesses could not be located. The matter was resolved only after the beneficiary agreed to split the assets with the others.
Such cases bring into focus the role of the executor of the will, who is supposed to oversee the distribution of your assets according to your will. "Not only should he be a reliable person, but someone your heirs will be willing to listen to," says Narendra Ahuja, a Delhi-based lawyer. If the asset distribution is not equitable, it can lead to squabbles, and unless the executor can resolve them, the matter may end up in court.
This is also the reason legal experts advise that the will should be registered. This is not mandatory, but it puts a stamp of authenticity. Registering a will can cost as little as 200-300. You can get it registered with a sub-registrar. To make it ironclad, use a stamp paper to make the will. One copy of the will is filed in the registrar records and the original is given back to the testator.
Is gifting a better option?
Instead of going through the rigmarole of making a will, one can simply gift them during one's lifetime . However, gifting has its own limitations. Once the asset is given, it becomes the property of the receiver . Experts say it is risky for a person to give away all his assets during his lifetime and then be at the mercy of the beneficiaries.
On the other hand, an individual can change his will, deleting names and adding new ones. A minor change can be done by filing a codicil instead of rewriting the entire will. This is a supplementary document which specifies the changes in the will. "One of the reasons people postpone making a will is the misconception that it cannot be altered. This is not true; you can make any number of changes," says Ahuja. The latest will supersedes all previous documents.
Appoint a nominee
One seamless option of transferring assets to your heirs is to make them nominees. All financial investments offer this facility. However, while a nomination ensures a smooth transfer of assets, it does not make the nominee the sole owner of those assets . The other legal heirs can stake a claim to them.
In a case that came up before the Supreme Court in 1983, a life insurance policyholder died without writing a will, leaving behind his mother, wife and son. His wife was the nominee of the insurance policy, but his mother and his son filed petitions, both demanding a one-third share. The court ruled in their favour, stating that the nomination only indicates that the person is authorised to receive the amount but is not the sole owner of that sum.
Making a will online
A few companies such as Warmond Trustees & Executors and Vakilno 1.com offer to make a will online. You need to register with the company and key in your personal and financial information. Once this is uploaded, the company drafts a will and sends it to you within seven days. Besides making the will, these companies help with the registration and also act as an executor. The cost of this convenience: 10,000.
However, this option works only if you have a simple portfolio and there are no conditions involved in the distribution of assets. "This is because any will with a complex structure requires a one-on-one discussion," says Sandeep Nerlekar, MD and CEO, Warmond Trustees & Executors. If you want an online will, you as well as the two witnesses need to have a digital signature.
If there is no will, the estate of the deceased is distributed in accordance with the law of succession. However, such cases usually end up in court or are settled after acrimonious negotiations. There is also a cost attached. If you apply for a succession certificate from the court because there's no will, you need to pay up to 3% of the value of the assets. This is why you should settle these issues during your lifetime. "A will is a legal document that clearly demarcates what should go to whom and bypasses all succession laws. It reduces the chances of dispute and lessens emotional distress," says Bali.
How to bequeath your digital assets
A significant part of our lives is spent online, saving or exchanging information in the form of blogs, photos, e-mails and financial data. Have you wondered what happens to it after you are gone? There is no legislation in India stipulating who will own online accounts, such as e-mail and social media, if the owner dies. "More and more, things are moving to the digital eco-system ," says Pavan Duggal, a Supreme Court lawyer, who recently got a will drafted for digital assets. The bequeathment process is similar to that for physical assets. The first step is to make an inventory. If the assets have monetary or personal value, name the person who will be the sole owner. However, many of these Websites are based overseas and your heirs may have to travel abroad for completing legal formalities.
"My husband didn't leave a will and had not named a nominee," she says ruefully. So, she and her kids have been running around to prove that they are the only legal heirs. Malhotra's husband has a substantial amount of money in his bank account, but it cannot be withdrawn till the bank is satisfied that there are no other claimants. "We have submitted copies of the death certificate and our ration card as well as a letter of indemnity, but the bank is demanding more documents," says Malhotra.
In Noida, 73-year-old RR Grover is not leaving anything to chance. He has experienced at close quarters how problematic it can be if the head of the family dies without leaving a will. "I don't want my heirs to run around to get what is theirs. So I have drafted a will that spells out how the assets will be distributed among them," he says.
Writing a will
Any adult who wants to distribute his assets can write a will. "Whether you are a daily wage earner or a tycoon , you have the right to dispose of the assets you own according to your wish," says Rajesh Dalmia, a Kolkata-based certified financial planner. A will is an instrument that allows you to do so.
It is not necessary to write it on a stamp paper or even get it registered. You can write a will on plain paper and it will be as legally valid as one prepared by a lawyer. All it should do is identify you as the testator (or the person who is making the will), list out your assets and specify how these are to be distributed. Whether you type it out or write it down, it is a legal document as long as it is signed by you and attested by two witnesses.
"The only requirement is that the will should be legible. If a person is old and frail, he should avoid writing it himself and get it typed to avoid disputes in the future," says Amit Aggarwal, a lawyer with SNG & Partners, a Delhi-based law firm.
However, if there is a complication in the ownership of assets and wealth, you may need the help of a legal professional to draft the will. Such a person will ensure that there are no loopholes or ambiguity in the language that may lead to disputes later on. More importantly, he will make sure that the distribution is within the ambit of the law. "When it comes to making a will, the wishes of the testator should be legally enforceable. Therefore, consulting a professional on this matter is important," says Pavan Duggal, a Delhi-based lawyer.
Legal viability
A will cannot override the natural succession of ancestral wealth. A person cannot will away the entire inherited property. He can pass on only his share to anybody he wants, but the remaining property can be willed only to the legal heirs. Suppose a Hindu man inherits 50 lakh from his father. If he has four legal heirs, then he has only a 20% share in that amount. The balance belongs to the four heirs.
If you want to bequeath assets to people other than the natural heirs, you would need to mention the reason for doing so. This would foreclose the chances of any objection from other beneficiaries.
A will has to be attested by at least two witnesses. They should be reliable and preferably much younger than you are in order to ensure that they are alive when your will is being executed.
Sanjana Bali, a partner with KB Partners, a Delhi-based law firm, recounts a case in which the deceased had willed everything to one of his children. The other siblings filed an objection but the sole beneficiary could not prove the validity of the will because the witnesses could not be located. The matter was resolved only after the beneficiary agreed to split the assets with the others.
Such cases bring into focus the role of the executor of the will, who is supposed to oversee the distribution of your assets according to your will. "Not only should he be a reliable person, but someone your heirs will be willing to listen to," says Narendra Ahuja, a Delhi-based lawyer. If the asset distribution is not equitable, it can lead to squabbles, and unless the executor can resolve them, the matter may end up in court.
This is also the reason legal experts advise that the will should be registered. This is not mandatory, but it puts a stamp of authenticity. Registering a will can cost as little as 200-300. You can get it registered with a sub-registrar. To make it ironclad, use a stamp paper to make the will. One copy of the will is filed in the registrar records and the original is given back to the testator.
Is gifting a better option?
Instead of going through the rigmarole of making a will, one can simply gift them during one's lifetime . However, gifting has its own limitations. Once the asset is given, it becomes the property of the receiver . Experts say it is risky for a person to give away all his assets during his lifetime and then be at the mercy of the beneficiaries.
On the other hand, an individual can change his will, deleting names and adding new ones. A minor change can be done by filing a codicil instead of rewriting the entire will. This is a supplementary document which specifies the changes in the will. "One of the reasons people postpone making a will is the misconception that it cannot be altered. This is not true; you can make any number of changes," says Ahuja. The latest will supersedes all previous documents.
Appoint a nominee
One seamless option of transferring assets to your heirs is to make them nominees. All financial investments offer this facility. However, while a nomination ensures a smooth transfer of assets, it does not make the nominee the sole owner of those assets . The other legal heirs can stake a claim to them.
In a case that came up before the Supreme Court in 1983, a life insurance policyholder died without writing a will, leaving behind his mother, wife and son. His wife was the nominee of the insurance policy, but his mother and his son filed petitions, both demanding a one-third share. The court ruled in their favour, stating that the nomination only indicates that the person is authorised to receive the amount but is not the sole owner of that sum.
Making a will online
A few companies such as Warmond Trustees & Executors and Vakilno 1.com offer to make a will online. You need to register with the company and key in your personal and financial information. Once this is uploaded, the company drafts a will and sends it to you within seven days. Besides making the will, these companies help with the registration and also act as an executor. The cost of this convenience: 10,000.
However, this option works only if you have a simple portfolio and there are no conditions involved in the distribution of assets. "This is because any will with a complex structure requires a one-on-one discussion," says Sandeep Nerlekar, MD and CEO, Warmond Trustees & Executors. If you want an online will, you as well as the two witnesses need to have a digital signature.
If there is no will, the estate of the deceased is distributed in accordance with the law of succession. However, such cases usually end up in court or are settled after acrimonious negotiations. There is also a cost attached. If you apply for a succession certificate from the court because there's no will, you need to pay up to 3% of the value of the assets. This is why you should settle these issues during your lifetime. "A will is a legal document that clearly demarcates what should go to whom and bypasses all succession laws. It reduces the chances of dispute and lessens emotional distress," says Bali.
How to bequeath your digital assets
A significant part of our lives is spent online, saving or exchanging information in the form of blogs, photos, e-mails and financial data. Have you wondered what happens to it after you are gone? There is no legislation in India stipulating who will own online accounts, such as e-mail and social media, if the owner dies. "More and more, things are moving to the digital eco-system ," says Pavan Duggal, a Supreme Court lawyer, who recently got a will drafted for digital assets. The bequeathment process is similar to that for physical assets. The first step is to make an inventory. If the assets have monetary or personal value, name the person who will be the sole owner. However, many of these Websites are based overseas and your heirs may have to travel abroad for completing legal formalities.
WILL POWER - Young aspirational Indians are earning and saving like never before. But have they thought of writing a Will?
Young aspirational Indians are earning and saving like never before. But have they thought of writing a Will? Indrani Rajkhowa Banerjee finds out
YOU are young, have a decent sum parked in your bank, have just booked your second flat and have been eying an Anjolie Ela Menon miniature. These, you reason, are all lovingly accumulated for your wife and kids. But have you thought of writing a Will so that your daughter doesn’t have to run from pillar to post claiming her dad’s favourite Anjolie Ela, after you are gone? For those who have always thought a Will was something written only by the likes of Queen Elizabeth, here’s the time to pause and think of the disadvantages of not having written off your legacy while you are in a healthy frame of mind.
Are we delusional?
In Delhi, 42-year-old corporate communications executive Arvind Padmanabhan, a father of three daughters, asks “What’s the hurry? I’m not going anywhere,” when the question of a Will crops up. Arvind owns a sprawling flat in Gurgaon and a plot of land in Manesar. Like him, there are scores of upwardly mobile Indians who are enjoying the fruits of an upbeat economy and better purchasing power than their parents, who have a clear idea about who should inherit their wealth, but fail to put it on paper. Some of them even find the talk morbid. Remarks Arundhati Mukherjee, advocate, Calcutta High Court, “Somehow, the middle-class Indian still carries this mindset that a Will is the prerogative of the rich. It’s ironical how most living room conversations ridicule the late Dhirubhai Ambani who died intestate because he thought his sons, Mukesh and Anil, would continue to be united, yet delusional when it comes to taking a call on their own bit of legacy.”
Put it on paper
Lawyer Pinky Anand explains why making a Will is the important first step in estate planning. “Making a Will is the only way to be 100 per cent sure that your assets go to the people you love. There’s no harm in putting it in writing, even when you are young, how you’d prefer the distribution of your property after your demise.” Anand says it’s the lack of awareness which deters people. “Why leave anything to chance? You have the right to dispose
of your assets according to your wish. It doesn’t matter if you are a daily wager or royalty,” says Mukherjee. In fact, the death of many wealthy people, like Maharani Gayatri Devi and Priyamvada Birla, whose Wills have caused lengthy legal battles between the heirs, and has been used by legal experts to emphasise the importance of making a Will and changing it as life circumstances alter.
The rules are simple
Any adult who wants to distribute his assets can write a Will. The assets can include property, jewellery, financial investments, art and artefacts, even cash. It’s commonly believed that writing a Will entails litigation, stamp paper and registration. On the contrary, you can write a Will on a plain paper and it will be as legally valid as one prepared by a lawyer. “You can type it out or write it down on a piece of paper. It is a legal document for all practical purposes as long as it is signed by you and attested by two witnesses,” says Mukherjee. It should identify you as the testator or the person who is making the Will. You should list out your assets and define exactly who you wish should inherit your assets, and what in particular each person will inherit. You should also nominate the person or people you want to be responsible for carrying out your wishes and who will act as a guardian to your children, if they have no other parent.
“The most important thing is that the Will should be legible,” Mukherjee points out. “It’s advisable to store your Will in a safe and fire-proof place and let your executors and family know where it is stored. As for its validity, a Will is valid until revoked. You can make as
many Wills you desire, but the last one will be considered as your final one. In case you get divorced and remarry, a new Will is required to distribute your estate. There is no such thing as a joint Will, every person should have their own Will,” she adds.
Most of the legacy battles are because people die without making a Will. So, if you haven’t done so already, it’s a really good idea to prepare one. After all, it’s a simple, do-it-yourself exercise and you don’t even need a stamp paper!
Thursday, April 28, 2011
Sai Baba had no will, we own the assets: Trust
Sathya Sai Baba had no will; Sathyajith has no membership in the trust; and the Sathya Sai Baba Central Trust will soon have a new chairman -- these are some of the points that have cropped up during the ongoing press conference of the trust at Puttaparthi a day after the spiritual leader was laid to rest.
Trust members on Thursday clarified that Sathya Sai Baba had left behind no will. They stated that the spiritual leader always maintained that he did not have a single rupee to his name and that all the assets are property of the trust; hence he could write no will.
Regarding the trust's cheque signatures, the trust said that only Sathya Sai Baba had the power to sign them. The future course of action on this aspect would be decided in the trust's next meeting.
With regard to the controversy surrounding the trust that they had tried to hide details about the spiritual leader's treatment, trust members clarified that the allegations were far from true.
The family members were allowed inside the hospital and they have personally witnessed Baba undergoing treatment, the trust said, adding that there is no confusion on that and the members of the family too have not disputed that.
The trust also went on to add that they were upset with the manner in which some sections of the media had been defaming the trust.
We are contemplating legal action against all those media who have defamed the trust and floated stories about us, members said.
Dismissing rumours about a freezer (to preserve Sathya Sai Baba's body) being ordered prior to the spiritual leader's demise, on April 4, the trust clarified that the order was placed only after Baba passed away.
Regarding the birth of Baba's next incarnation, the trustees said the spiritual leader had not given any specific date for the birth of Prema Sai Baba.
With regards to Sathyajith, the trustees have made it clear that he was not a member of the trust and that there was no plan at the moment to bring him on board.
Further, it was also said that Chakravarthy, the IAS officer who joined Baba a couple of years ago, is only a secretary and not a member of the trust.
Baba's nephew Ratnakar who is a trustee made it clear that the trust will function as per the wishes of Baba and that he had no disputes with Sathyajith as has been reported in the media.
He has said that they would need some time to elect a new chairman (post held by Baba) and assured that the trust would function well.
Justice P N Bhagavathi, former Chief Justice of India who is a member of the trust, had indicated that prior to the press conference that Baba had not appointed any successor.
He had also made it clear that there was no difference of opinion between the trust and Sathya Sai Baba's family members.
Trust members on Thursday clarified that Sathya Sai Baba had left behind no will. They stated that the spiritual leader always maintained that he did not have a single rupee to his name and that all the assets are property of the trust; hence he could write no will.
Regarding the trust's cheque signatures, the trust said that only Sathya Sai Baba had the power to sign them. The future course of action on this aspect would be decided in the trust's next meeting.
With regard to the controversy surrounding the trust that they had tried to hide details about the spiritual leader's treatment, trust members clarified that the allegations were far from true.
The family members were allowed inside the hospital and they have personally witnessed Baba undergoing treatment, the trust said, adding that there is no confusion on that and the members of the family too have not disputed that.
The trust also went on to add that they were upset with the manner in which some sections of the media had been defaming the trust.
We are contemplating legal action against all those media who have defamed the trust and floated stories about us, members said.
Dismissing rumours about a freezer (to preserve Sathya Sai Baba's body) being ordered prior to the spiritual leader's demise, on April 4, the trust clarified that the order was placed only after Baba passed away.
Regarding the birth of Baba's next incarnation, the trustees said the spiritual leader had not given any specific date for the birth of Prema Sai Baba.
With regards to Sathyajith, the trustees have made it clear that he was not a member of the trust and that there was no plan at the moment to bring him on board.
Further, it was also said that Chakravarthy, the IAS officer who joined Baba a couple of years ago, is only a secretary and not a member of the trust.
Baba's nephew Ratnakar who is a trustee made it clear that the trust will function as per the wishes of Baba and that he had no disputes with Sathyajith as has been reported in the media.
He has said that they would need some time to elect a new chairman (post held by Baba) and assured that the trust would function well.
Justice P N Bhagavathi, former Chief Justice of India who is a member of the trust, had indicated that prior to the press conference that Baba had not appointed any successor.
He had also made it clear that there was no difference of opinion between the trust and Sathya Sai Baba's family members.
Saturday, April 16, 2011
Books for will making in india
Valid Wills And Succession Planning
Publisher: Vision Books (2005)
Tax And Succession Planning Through Trusts And Wills
Publisher: Vision Books (2008)
If Theres No Will, Theres Still A Way
Its best to have a will in place, but if there isnt one, certain documents can make up for its absence
SAKINA BABWANI
The death of a loved one is the most dreaded thing that can happen to any family. It can get even more traumatic when the family realises that the deceased has not left a will behind. In such a situation, the family is usually left running from pillar to post, trying to gain access to the property which, in many cases, could be the only saviour from doom. However, according to experts, the family can still get its due even in the absence of a will, provided it can get hold of a few documents. A succession certificate and a copy of the death certificate should solve at least 95-96 % of your problem, says Sivaramakrishnan, head of legacy planning, Altamount Capital Management.
SUCCESSION CERTIFICATE
Usually, a succession certificate is the key document that you need. In the absence of a will, a succession certificate will be the primary document through which the heirs can stake a claim to the assets of a deceased relative, says Sivaramakrishnan. A succession certificate, under the Indian Succession Act, is a document that gives authority to the person who obtains it, to represent the deceased for the purpose of collecting debts and securities due to him or payable in his name. For a succession certificate, you need to apply to a magistrate or a high court. Usually, courts have a separate cell that issues succession certificates. When it comes to immovable property, there are other documents, like, for instance, a gift deed, that can help. Rajesh Narain Gupta, partner, SN Gupta & Co, says, In some states, in cases of intestate succession, property can be gifted or the share in the immovable property can be released by the legal heirs to each other. This can be done by executing and registering the gift deed or release deed with the registrar of assurances.
NOMINATIONS & DEATH CERTIFICATE
For access to the deceaseds bank accounts, the process differs slightly. If the deceased has made some nominations, then naturally, the nominees will claim the balances. If there is a nomination made by the deceased, then the nominee can claim the balances /investments based on the nomination, says Gupta. Sivaramakrishnan points out, Banks, under RBIs guidelines, are bound to pay to the nominees if the nominations had been registered with the bank. Here registration refers to a confirmation from the concerned bank. But for most people, the real problem arises when there is neither a nomination nor a will. What do you do in such a case You need a certified copy of the death certificate to gain access to the bank accounts. The banks usually look to see if the deceased had assigned a beneficiary for the account. If there is no beneficiary, then the succession rule would apply, says Sandeep Nerlekar, managing director and CEO, Warmond Trustees & Executors. Usually, the hospital or the crematorium issues the death certificate.
TRANSFER OF SHARES
As, in most case, securities form a substantial part of assets. The process of transmission in case of dematerialised holdings is more convenient as the transmission formalities for all securities held in a demat account can be completed by submitting necessary documents to the depositary participant (DP), whereas in case of physical securities the legal heirs/nominee/surviving joint holder has to independently correspond with each company in which securities are held, says Nerlekar. The claimant should also submit to the concerned DP an application in transmission request form (TRF) along with a notarised copy of the death certificate, in case of the death of the sole holder where the sole holder has appointed a nominee, he adds. Again, a problem will arise when the sole holder has not appointed a nominee. What would you do in such a case In such a case, you will need a notarised copy of the death certificate of the holder and any one of the following certificates: succession certificate: a certified copy of the will and the probate (if there is any), a certified copy of the letter of administration (if value of holding is less than. 1 lakh), says Nerlekar.
MINOR CHILDS RIGHTS
Imagine a situation where the parent of a child has died suddenly without leaving a will. What can a minor child do in such a case A minor child needs to file a case in any court or petition through a guardian under the law or a guardian appointed by the court, says Gupta. Although minors have the legal capacity to own property, they do not have legal capacity to manage it, says Nerlekar. Since minors are legally incapable of handling property, a guardian is appointed from among their relatives to manage the property. Should no one step forward to be a guardian (under the supervision of Court) on account of the fiduciary nature of the responsibility, the court may appoint a guardian and house the share of the minor with such a guardian, adds Sivaramakrishanan. The court also ensures that minors are adequately protected. If your children inherit a share of your house, your spouse will not be able to sell it, rent it out, or even refinance the mortgage without a court order. Getting court orders could be expensive and time-consuming, says Nerlekar. And when it comes to investing these assets, the court takes adequate steps to protect them as well. The court may pass additional orders to protect the interests of minors as to how the assets falling to the hands of minor are to be invested till the minor attains the majority, informs Gupta.
MUTUAL AGREEMENTS
The real problem arises when there are too many people vying for the same property. This is quite a possibility when the deceased has children, spouse as well as kin. Nerlekar says, All the heirs may not live in the same state, or they may not be able to agree on what should be done with the property. The more heirs you have, the more money and effort they will have to spend trying to get organised. In such a situation, relatives should opt for a mutual agreement, feel experts. If the specific relatives of the deceased have come to a mutual agreement as regards dividing the assets/properties of the deceased, then they may document, sign and witness and file the same to the succession court along with their application. This mutual agreement must be comprehensive and deal with all known relatives and kindred of the deceased. It cannot be prejudicial to any of the relatives/ kindred. This will greatly speed up the process of issuance of a succession certificate, says Sivaramakrishnan. But make sure you record your agreement. Gupta adds, Any such settlement is to be recorded either by way of partition deed duly registered with the sub registrar of assurances or a decree passed by the court or a settlement before the court in a judicial proceeding. However, a mutual agreement is not conclusive. A mutual agreement by itself is not sufficient. You need to get a succession certificate as well, says Sivaramakrishanan. Even though the problem has a solution, most experts are of the view that it is best to keep a will in place so that your family is saved from the hassles of getting things in order. sakina. babwani@timesgroup. com
SAKINA BABWANI
The death of a loved one is the most dreaded thing that can happen to any family. It can get even more traumatic when the family realises that the deceased has not left a will behind. In such a situation, the family is usually left running from pillar to post, trying to gain access to the property which, in many cases, could be the only saviour from doom. However, according to experts, the family can still get its due even in the absence of a will, provided it can get hold of a few documents. A succession certificate and a copy of the death certificate should solve at least 95-96 % of your problem, says Sivaramakrishnan, head of legacy planning, Altamount Capital Management.
SUCCESSION CERTIFICATE
Usually, a succession certificate is the key document that you need. In the absence of a will, a succession certificate will be the primary document through which the heirs can stake a claim to the assets of a deceased relative, says Sivaramakrishnan. A succession certificate, under the Indian Succession Act, is a document that gives authority to the person who obtains it, to represent the deceased for the purpose of collecting debts and securities due to him or payable in his name. For a succession certificate, you need to apply to a magistrate or a high court. Usually, courts have a separate cell that issues succession certificates. When it comes to immovable property, there are other documents, like, for instance, a gift deed, that can help. Rajesh Narain Gupta, partner, SN Gupta & Co, says, In some states, in cases of intestate succession, property can be gifted or the share in the immovable property can be released by the legal heirs to each other. This can be done by executing and registering the gift deed or release deed with the registrar of assurances.
NOMINATIONS & DEATH CERTIFICATE
For access to the deceaseds bank accounts, the process differs slightly. If the deceased has made some nominations, then naturally, the nominees will claim the balances. If there is a nomination made by the deceased, then the nominee can claim the balances /investments based on the nomination, says Gupta. Sivaramakrishnan points out, Banks, under RBIs guidelines, are bound to pay to the nominees if the nominations had been registered with the bank. Here registration refers to a confirmation from the concerned bank. But for most people, the real problem arises when there is neither a nomination nor a will. What do you do in such a case You need a certified copy of the death certificate to gain access to the bank accounts. The banks usually look to see if the deceased had assigned a beneficiary for the account. If there is no beneficiary, then the succession rule would apply, says Sandeep Nerlekar, managing director and CEO, Warmond Trustees & Executors. Usually, the hospital or the crematorium issues the death certificate.
TRANSFER OF SHARES
As, in most case, securities form a substantial part of assets. The process of transmission in case of dematerialised holdings is more convenient as the transmission formalities for all securities held in a demat account can be completed by submitting necessary documents to the depositary participant (DP), whereas in case of physical securities the legal heirs/nominee/surviving joint holder has to independently correspond with each company in which securities are held, says Nerlekar. The claimant should also submit to the concerned DP an application in transmission request form (TRF) along with a notarised copy of the death certificate, in case of the death of the sole holder where the sole holder has appointed a nominee, he adds. Again, a problem will arise when the sole holder has not appointed a nominee. What would you do in such a case In such a case, you will need a notarised copy of the death certificate of the holder and any one of the following certificates: succession certificate: a certified copy of the will and the probate (if there is any), a certified copy of the letter of administration (if value of holding is less than. 1 lakh), says Nerlekar.
MINOR CHILDS RIGHTS
Imagine a situation where the parent of a child has died suddenly without leaving a will. What can a minor child do in such a case A minor child needs to file a case in any court or petition through a guardian under the law or a guardian appointed by the court, says Gupta. Although minors have the legal capacity to own property, they do not have legal capacity to manage it, says Nerlekar. Since minors are legally incapable of handling property, a guardian is appointed from among their relatives to manage the property. Should no one step forward to be a guardian (under the supervision of Court) on account of the fiduciary nature of the responsibility, the court may appoint a guardian and house the share of the minor with such a guardian, adds Sivaramakrishanan. The court also ensures that minors are adequately protected. If your children inherit a share of your house, your spouse will not be able to sell it, rent it out, or even refinance the mortgage without a court order. Getting court orders could be expensive and time-consuming, says Nerlekar. And when it comes to investing these assets, the court takes adequate steps to protect them as well. The court may pass additional orders to protect the interests of minors as to how the assets falling to the hands of minor are to be invested till the minor attains the majority, informs Gupta.
MUTUAL AGREEMENTS
The real problem arises when there are too many people vying for the same property. This is quite a possibility when the deceased has children, spouse as well as kin. Nerlekar says, All the heirs may not live in the same state, or they may not be able to agree on what should be done with the property. The more heirs you have, the more money and effort they will have to spend trying to get organised. In such a situation, relatives should opt for a mutual agreement, feel experts. If the specific relatives of the deceased have come to a mutual agreement as regards dividing the assets/properties of the deceased, then they may document, sign and witness and file the same to the succession court along with their application. This mutual agreement must be comprehensive and deal with all known relatives and kindred of the deceased. It cannot be prejudicial to any of the relatives/ kindred. This will greatly speed up the process of issuance of a succession certificate, says Sivaramakrishnan. But make sure you record your agreement. Gupta adds, Any such settlement is to be recorded either by way of partition deed duly registered with the sub registrar of assurances or a decree passed by the court or a settlement before the court in a judicial proceeding. However, a mutual agreement is not conclusive. A mutual agreement by itself is not sufficient. You need to get a succession certificate as well, says Sivaramakrishanan. Even though the problem has a solution, most experts are of the view that it is best to keep a will in place so that your family is saved from the hassles of getting things in order. sakina. babwani@timesgroup. com
Nomination
Nomination is the process of appointing a person to take care of your assets in the event of your death. You can appoint a nominee for your bank account, fixed deposit, demat account, or even your house. A nominee can be a family member or a friend or any other person whom you trust. You need to choose a nominee with care as the person needs to be reliable enough to take care of your assets in the event of your death. So when you open a savings bank account, or make a mutual fund investment, there is a space which asks for the nominee details. Nomination for joint holders is permitted, however in the event of death of any of the holders the benefits will be transmitted to the surviving holders name. In the case of death of all holders the benefits will be transmitted to the nominee account. Individuals holding accounts either singly or jointly can make nomination. Non-individuals including society, trust, body corporate, karta of Hindu undivided family (HUF), holder of power of attorney cannot nominate. The nominee appointed has to be a individual only. Only one person can be appointed as a nominee. It is not compulsory to appoint a nominee for each investment of yours. However, it is in your interest that you appoint a nominee for your investment so that in the event of your death, there is no difficulty in the transfer of your assets. In case you do not appoint a nominee while making an investment, you can also do the same at alater date by filling the relevant application form and giving it to the bank or mutual fund. A minor can be a nominee. In such a case, the guardian will sign on behalf of the nominee and in addition to the name and photograph of the nominee, the name, address and the photograph of the guardian must be submitted. Though a nominee is an important person, he or she has no right over the money or assets unless that is specified under the will or the nominee happens to inherit the money. So a nominee is a mere custodian of the assets. He is a contact point for the investments. In the event of a persons death, a bank could get in touch with the nominee for further instructions to act on the account. At the time of claiming the savings, the nominee will have to give a proof of his identity to the relevant authority.
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