My article in the last newsletter “Health Before Wealth
” received several comments and questions. I will address them first and then continue more on the WILL and Living WILL.
1. Can we have a WILL that is valid in US and INDIA ? Or do we have to have two different wills ?
It is recommended that you write two different Wills. The jurisdiction of individual countries may pose problems later for beneficiaries. By having two different Wills, you may avoid costly litigation.
2. Every time there is a considerable investment, do we have to update the will ? or can we have a will that is good for considerable time (5 or10 years) or forever ?
By writing a generic will one can avoid repeated corrections in the Will. Having many versions may work in software development but not with Will. It will cause confusion and no one would be possibly confirm, if there is another ‘latest’ out there.
For example instead of saying Rs.2,00,000 from my ICICI bank account should go to my Uncle Mr.Raj , you may say Rs.2,00,00 from my bank account should go to Uncle Raj. Also make sure you identify the beneficiary with name, son of, wife of, and approx age, relationship and current address etc. Don’t let court decide who is Uncle Raj. If the judge has an uncle in the name of Raj, you know who will get the money.
3. Can you refer/suggest who can do the will for US and India?
There are standard formats available if you google for US. Download any of them and get it done. Get witnesses who are US residents to sign. I am not lucky to find any good will format for India. It is not expensive to take help of lawyer or a doc writer to get this done in India.
4. Does it have to be registered/recorded with some govt/independent agency in US/India to make sure it is legal ?|
A Notary public signature with 2 witness should be good enough. Registration is not mandatory. Make sure you choose young healthy person to be witness. Some make the mistake of choosing elder people as witness and usually die well before you do and cause problems when your will comes for probation.
While Registration of the will makes it more authentic, it causes two problems. (1) It becomes public document, anybody can get a copy from the registration office. (2) If you need to re-write or change beneficiary, you have to cancel the registration and do another registration – more cost and time.
5. Is nominee same as beneficiary?
This is not something I can say conclusively. This is my understanding. In US context, the nominee is the beneficiary and nominee appointment overrides what is in WILL. So, nominee receives the money and has complete right over that money after your death.
In Indian context, often court has held that the beneficiary mentioned in the WILL overrides the nominee appointment. Nominee in Indian context have right to receive money on death but can’t benefit from it. They have to pass the money to legal heirs or as per the directions of the WILL. So, make sure there are no conflicts in nominee appointment and beneficiary designation as per WILL.
When you are writing the WILL, the opening sentence in your WILL should make it clear that this document is intended to be your will, give your name, place of residence and revoke any previous wills and codicils (amendments to previous wills). This can help avoid a court battle if someone should produce an earlier will. Make sure you date your will clearly. Don’t use mm/dd/yy or dd/mm/yy format which can be subjected to confusion. Mention the date in the format like 02-June-2012.
Will should cover Payment of your loans and debts if any , money and personal property, real estate and immobile assets, tax dues, estate taxes, Minors and their guardians, etc., Add a section for simultaneous death of the beneficiary also and add contingent beneficiary clause.
Next while you are living abroad, you also need what is called Living Will. Will is enforced, only when you die. If you are incapacitated in an accident or by serious illness like cancer, kidney failure or Parkinson’s, Will is not enforced.
Now if you have all assets in your name alone, your spouse and children will find it difficult to get the money needed to save you, pay for hospital expenses and pay for their living. This is really a bad position for you to be in. You saved money but it won’t save You. Believe me, this is not uncommon as you think. Time to time, people don’t use their common sense and also complacent enough to get into trouble themselves due to lack of proper planning and execution.
If you are living in USA, you have more work to do. Because each of the 50 states have some law regarding the ability of patients to make decisions about their medical care before the need for treatment arises through the use of advance directives. You should check the law in your jurisdiction or have an attorney review your advance directives. In some states, however, an unapproved document may have some persuasive effect.
You can choose how long you like to be in life support, what treatments are acceptable and what are not, what you feel as painful process etc., Your medical appointee should be able to provide your direction to treating physicians. It is advisable, however, to be particularly clear on those issues so that there is no room for your loved ones to debate. Moreover, they would likely feel less burdened by guilt if they are certain they are following your specific wishes not to be artificially fed or hydrated.
Next if you have given Power of Attorney for someone to represent you, remember with the death, POA also goes invalid. Same hold good for any power you represent.