Meet the Manager. ‘It is imperative that women make a Will’

Financial inclusion for women goes beyond banking privileges, and tailor-made investment and insurance products.. Access to assets through inheritance - an area in which women descendants are still not given an equal oppurtunity as men in most cases - too is vital. So is her right to decide who gets her assets beyond her lifetime. We catch up with Neha Pathak, Head of Trust and Estate Planning, Motilal Oswal Private Wealth Management, to know more on inheritance and succession planning for women in India.

The inheritance depends upon testamentary or intestate succession. In the former case, the person (predecessor) would have passed away making a testament (Will) that determines to whom and how the deceased’s assets should be distributed. In the intestate case, in which the person passes away without making a Will, the succession of assets is governed by the respective personal succession laws, such as Indian Succession Act, Hindu Succession Act and Muslim Personal Law.

As per the Hindu Succession Act, upon a male Hindu passing away, the property should be distributed in equal share to his widow, mother and each of the children. In case, any of the child has predeceased, the children and spouse (only if the deceased child is a male) will collectively get his/her share.

On the other hand, for a male Christian passing away without a Will wherein he leaves behind his wife and lineal descendants (i.e., children and grandchildren), the wife has a right of one-third share in the estate of her deceased husband and the remaining two-third shall go to the lineal descendants.

A married woman’s right in her spouse’s family’s assets are through her husband.

She directly will not inherit any asset while the husband is alive. However, on the demise of the husband, she, along with her children (if any) can claim rights over the assets that would have been otherwise be inherited by her husband..

One should also be aware that daughter-in-law can be left out of the share that her husband would inherit. This is when a Will is made saying that in case the son predeceases the person creating the Will, the share in the assets will be given to someone else and not the daughter-in-law.

What rights do women have on assets jointly held with spouse? Does the right change if she ceases to be married or if she hasn’t contributed monetarily to the acquisition of the asset?

When a wife is holding property jointly with her husband, whether she has contributed to the funds or not in the purchase of the property, she is entitled to her share of property as mentioned in the sale agreement. However, in case her husband passes away without a Will his share in the property will be distributed between/among his legal heirs as per the personal succession laws.

In case the woman is divorced from her husband, she may be entitled to maintenance either as decided mutually among husband and wife or as decided by the court of law.. In case she held the property with her husband while she was married, then the portion of the property which is in her name will belong to her. However, the couple can decide on the utilisation or ownership in the terms of divorce.

There have been instances where the couple has been separated and not divorced and the husband has passed away without making a Will. In such an instance, the woman is considered as wife of the deceased and is eligible to claim the assets as the deceased husband’s legal heir.

When a woman passes away without making a Will, the succession of her assets will be based on her religion. For instance, as per the Hindu Succession Act, when a female Hindu passing away without making a Will, class 1 heirs, i.e., husband, son (s) and daughter (s), including children of predeceased son/daughter will inherit the assets. However, when a woman is widow at the time of her demise and she has not created a Will, then her husband’s legal heir may have a right over her assets.

On the other hand, when a Muslim woman passes away, if she has children, then the husband will get 1/4th share in her property. If there are no children, then the husband will have half share in the wife’s property.

In this case a single woman passes away without a Will, her assets - as per the Hindu Succession Act - will benefit her legal heirs, i.e., her kids ; in case she does not have children, then legal heirs from the side of her parents will benefit.

Thus, it is critical for a woman to identify her obligations, be it towards her children or her parents,orcaretaker or charity.It is imperative that a woman makes a Will, unless she wants the personal laws to take effect and guide the process of succession of her assets.

What are the rules to keep in mind while planning one’s succession?

Primarily, one should start with compiling a list of assets and beneficiaries who should benefit from the assets in case you are no more You will have to keep in mind a few things like (1) ensuring the asset is your own (and not bought by you in someone else’s name or already gifted to someone else) (2) in case one of your children is not a beneficiary in the Will or if you are giving extra share to one child over another or giving your entire asset base to an unrelated party, prefer adding in a few clause explaining your intention for the same (3) Nominations and the will should be in sync with each other (4) ensure that the Will is witnessed by 2 witnesses (these witnesses cannot be the beneficiaries (5) keep reviewing the Will on an ongoing basis and (6) let concerned people know where to find your Will

However, over a period of time limitations of the Will crop up and become evident. Hence, one may require a more sophisticated approach to plan their succession. One should create a ‘Private Family Trust’ to achieve the same objectives in a relatively smooth manner.