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This article is written by Chinnmay Shah.

Introduction

Economic and financial uncertainties have increased as a result of the Covid-19 crisis. It has put the lives and wellbeing of countless people in jeopardy. Many people are rethinking their estate plans and succession plans as a result of all of these difficulties and uncertainties. Many recent studies have found that the number of people writing wills is on the rise. 

What is a Will?

A will is a method of succession planning that guarantees that an individual’s land, or any other possession, is distributed to the individual’s chosen family members without any disputes. Intestate succession and testamentary succession are the two ways that property can be passed on. If intestate succession occurs when there is no legal will and all properties are presumed to be passed on to the individual’s spouse, children, or other family members, testamentary succession occurs when property is distributed according to the terms specified in the will.

How do you write the Will?

  • To write your will, the following people are needed: 
    1. Testator, who writes your will.
    2. Executor of the will, delegated to ensure that all property is responsibly distributed as per the requirements of the individual.
    3. Two witnesses to justify the testament.

(Note: Stamp paper is not necessary when writing the will, but writing the will on a stamp paper will prove the authenticity about the date by which one can identify when the will was been made.)

  • Once the above mentioned people are identified, you can write your will. Be very clear with names and specific about the distribution of the property. 
  • It’s important to mention the specific date so that the latest will is being executed.
  • The framework of the will must be amended if any modifications are to be made during the interim period. In addition, if you want to change a clause in your will, you’ll need to draft a Codicil, also known as a will Supplement. To prevent uncertainty, make a new will if your current one has too many changes.
  • You must pay attention to all of the essential aspects of your financial life when drafting a will. Don’t forget to list all of your assets and liabilities. This includes both movable and immovable assets, as well as savings. Since so many investments are now kept electronically, make sure to include them in your will. In your will, you should include all assets that you have acquired, purchased, or generated during your lifetime, such as houses, land, cars, jewellery and cash. This is a crucial move because you do not want your legitimate heirs to become embroiled in a legal battle after your death and lose access to the funds meant for them and required to sustain their lifestyle.

What is the importance of a Will?

Individuals seldom write wills because they assume that their property will be passed on to their heirs, often known as Legatees. However, several times, spoken promises will not lead to desired results as it will lead to many times biased interpretation contrary to the intention of the Testator. You have a legal right and assurance to distribute your property if you have a will.

Every person must decide at least once in his or her life who will be the ultimate beneficiary of the property after his or her death. It’s crucial to figure out who will legally inherit the house, whether it’s a legitimate heir or a nominee. It’s possible that the two are the same person, but this isn’t always the case. A Nominee is a person who is chosen by a deceased person while he or she is still alive to look after the deceased person’s properties and savings after his or her death. 

The Legal Heir, on the other hand, is the person who succeeds and is legally entitled to inherit the property of another person after that person’s death. For a further clear picture and justification the difference between a nominee and a legal heir is as follows:

Comparison Chart

Basis for Comparison

Nominee

Legal Heir

Meaning

Nominee implies a person nominated by another to act as a custodian of the assets, in the event of death.

Legal Heir refers to the successor, whose name is mentioned in the will of the deceased, as the final owner of assets.

Role

Trustee

Beneficiary

Indicates

The hands authorized to receive the amount or asset.

The hands entitled to own the amount or asset.

Definition of Nominee

As the name implies, a nominee is a person who has been selected by another person to act as his or her representative in a specific matter. On the death of another person, he or she is the one who receives the properties or the sum. 

The nominee is not the owner, but for the time being acts as the holder of the wealth of the deceased and passes it to the legal heir, according to the will drafted by the deceased. Only members of one’s immediate family may be nominated. Any nomination made in the name of someone who is not a family member is invalid. If a person does not have a family, he or she can appoint someone as a nominee; however, once the person does have a family, the previous nomination becomes void, and a new nomination in favour of the family members must be made.

Definition of Legal Heir

The term “legal heir” refers to the person who is entitled to become the ultimate owner of the deceased’s properties and investments. The legal heir’s name is listed in the deceased person’s will, and if the deceased person did not leave a will, the rules of succession law will apply, and the property will be distributed to different claimants on that basis. 

The right of the legal heir to the wealth is indefeasible in nature. Basically, the legal heirs of a deceased who is married are spouse, children and parents, whereas, in case of an unmarried deceased person, his/her parents and siblings would be the ultimate legal heirs.

Key differences between Nominee and Legal Heir

The differences between the nominee and legal heir are explained hereunder:

  1. A nominee is a person who has been nominated in the favour of another person in order for him or her to receive a sum of money after that person’s death. The legal heir, on the other hand, is the person who inherits an ownership interest in another person’s estate in the event of that person’s death.
  2. The nominee acts as the trustee, who holds the property of another person till it is transferred to the legal heir. As against, the legal heir plays the role of the beneficiary who has an ownership interest in the property of the deceased.
  3. A nominee is the one authorised to receive the amount after the demise of the person who made a nomination. On the contrary, the legal heir is the one who has the ultimate right to the assets or wealth of the deceased person.
  4. Nomination decides the legal nominee, whereas it is the will that specifies the legal heir of a person. However, in the absence of a will, the provisions of succession law shall apply.

By and large, the legal heir and nominee determine two different persons, i.e. the former determines the ultimate owner of the property and the latter decides the recipient of the property. However, a person can be the nominee and legal heir at the same time, when he/she is nominated for the investments and other holdings and his/her name is also mentioned in the will of that person as the legal heir.

One of the benefits of making a will is that you can amend it as much as you like, and you can even add or exclude legal heirs from it. By a simple document which is called a Codicil, basically a Codicil is a document that amends an existing will, but does not replace it. It allows you to change your will without making an entirely new will, and must be signed in the exact same way as the will was signed (although the two witnesses do not have to be the same two people that witnessed the original will).


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