Creating a will is one of the most responsible decisions you can make, especially if you have dependents. However, many Indians assume that wills are only for the ultra-wealthy or elderly, which often leads to neglecting this important task. The rules in your host country may differ from those in India, so it’s crucial to consider making a will to protect your loved ones.
A will is a deeply personal document, and there are no one-size-fits-all solutions. Based on my experience in creating a will, I will provide some useful pointers. While this guide is primarily focused on England, many of these points may apply to other countries as well.
The Importance of Having a Will: Key Scenarios in England
Without a will, your loved ones may face significant challenges. Let’s explore some scenarios in England to understand the consequences of not having a will:
- What happens to children if both parents pass away without a will?
- Children will be taken into care until the court appoints a guardian. They will inherit your assets when they turn 18, but those assets will be managed by a trustee until that time. However, they might not be mature enough to handle a large sum of money at such a young age.
- What happens to assets if there is no will?
- The surviving spouse will inherit the first £325,000 of the estate, plus half of the remaining estate. The other half will be divided equally among biological and adopted children.
- What happens to assets if both parents and children pass away without a will?
- If no relatives are available, the assets will go to the Crown Estate.
If these outcomes are not aligned with your wishes for your dependents and hard-earned money, it’s essential to create a will. It’s not a difficult process, but there are a few key questions you need to address.
Key Questions When Creating a Will
1. Guardians for Children
This is often the most difficult decision for NRIs, especially if you don’t have family or relatives living in your host country. You might want to appoint guardians from your family in another country. In this case, it’s a good idea to have interim guardians in your host country until the appointed guardians can take custody. Choose someone you and your children trust.
2. Executor
The executor is the person who will carry out your wishes as specified in your will. They will handle financial matters by contacting financial institutions and government agencies. This could be your spouse or a professional company. Many professional companies in the UK offer will execution and trust management services. It’s wise to appoint a backup executor in case your spouse is unwilling or unable to fulfill the role. The executor should ideally reside in your host country, as managing financial institutions and organizations from abroad can be challenging.
3. Trustee
If you allocate some of your assets into a trust, the trustee becomes the legal owner of those assets. They will manage the assets according to the terms outlined in your will. Trustees are typically individuals you trust, such as family members, or people who will look after the assets while your children are young.
4. Reserve Beneficiaries
If there are no living relatives to inherit your estate, it will go to the Crown Estate. You can designate reserve beneficiaries in your will in case something happens to your immediate family. These could be relatives in your host country or other countries.
5. Funeral Wishes
You can specify your funeral preferences in your will. These might include:
- Organ donation wishes
- Religious rituals or specific customs
The Process of Creating a Will
It is possible to write a simple will yourself, there is no legal requirement in England to hire a solicitor for this. However, mistakes in a DIY will can invalidate it. To avoid this risk, it’s a good idea to consult a will writer to ensure your will is correct and legally valid. You can find a will writer in your area through references or services like the Institute of Professional Willwriters (IPW).
Once you’ve chosen a will writer, you’ll need to decide on the type of will that best suits your needs. They will typically offer a few options:
- Basic Will
This includes guardianship of children, asset distribution for dependents, funeral wishes, and other essentials. If you have young children, they will inherit your assets when they turn 18. A basic will is ideal if you’re young, have dependents, and don’t have many complex assets. Many online will-writing services offer affordable options and can provide a review or full service. - Trust-Based Will
In addition to everything covered in a basic will, a trust-based will allows you to place assets into trusts. This gives you more control over how and when assets are distributed—such as at different life stages rather than all at once when your children turn 18. This type of will is suitable for those with young children, significant assets, or complex asset distribution needs. - Estate Planning
This service includes inheritance tax planning along with the creation of your will. It’s typically more expensive and usually best for older individuals, as inheritance tax laws change over time, and early planning may no longer be valid in the future.
Trusts: What You Need to Know
Trusts are legal vehicles that allow you to manage your assets according to your wishes. They are especially useful if you want to control how and when your children access their inheritance. Trusts are also important for overall estate planning. Given that tax rules and legislation surrounding trusts are subject to change, it’s advisable to consult an estate planning expert to understand if a trust is appropriate for your situation.
Storing Your Will
It’s crucial to store your will securely and inform your executors and dependents about its location. You can keep it at home, but ensure it’s stored safely to avoid damage or loss. Many will writers offer a storage facility for a fee, and they will provide you with a reference copy.
Alternatively, you can store your will with the government’s HM Courts and Tribunals Service (HMCTS) for a small fee. When stored with HMCTS, you’ll receive a certificate, which can be shared with executors.
Review and Update Your Will Regularly
You should review your will every five years or after significant life events. Common triggers for updating your will include:
- Changes in the guardian, executor, or trustee situation
- Changes in relationships or dependents
- Moving house
Covering Indian Assets in Your Will
A common question is whether a UK-based will can cover Indian assets. While Indian courts do accept foreign wills once they’ve been deposited and proven in a foreign court, this may require additional documentation and proof. Given the complexity of the Indian legal system, I recommend creating a separate will for your assets in India. This will make it easier for your executors and dependents to manage your estate.