Wills and Trusts: The Overlooked Cornerstone of Estate Planning

For many professionals and business owners, estate planning is often postponed for “someday.” We devote years to building wealth, expanding businesses, and securing our families’ futures — yet neglect one of the simplest acts of foresight: writing a Will. It’s not indifference; it’s the illusion that there will always be time. Unfortunately, “later” often arrives too late, leaving behind uncertainty, frozen assets, and unnecessary disputes.

A Will is not an emotional decision — it is a practical one. It’s the final stage of responsible financial and legal planning. In India, a majority of family and promoter disputes arise not from poor business decisions, but from unclear succession. A well-drafted Will can prevent years of litigation, protect relationships, and ensure that wealth passes as intended.

The Power and Simplicity of a Will

A Will is a written declaration by which a person — the testator — directs how their property will be distributed after death. It takes effect only upon death and can be changed or revoked anytime during life. Governed by the Indian Succession Act, 1925, it offers flexibility and clarity — giving control over how one’s assets, investments, and even business interests are dealt with.

In essence, a Will is about clarity and continuity. It ensures your family is protected, your assets move smoothly, and your wishes are respected. Unlike most legal instruments, it doesn’t take away ownership during your lifetime — it simply provides direction for the future.

Who Can Make a Will and What It Must Contain

Any person over 18 years of age and of sound mind can make a Will. The testator must understand what they own, whom they are gifting it to, and must act voluntarily. A Will made under coercion, undue influence, or fraud is void.

A valid Will should:

1. Be in writing (typed or handwritten, but clear).
2. Express the testator’s intent — who receives what, and in what proportion.
3. Be signed by the testator (preferably on every page).
4. Be attested by two independent witnesses.
5. Be free from coercion.
6. Ideally include a doctor’s certificate of mental fitness, especially for senior citizens.

The language should be simple and specific. A short explanatory note can further prevent misinterpretation or challenge.

Executor, Beneficiaries, and Witnesses

The Testator/ author of the Will should appoint an executor — the person who ensures that its instructions are carried out. The executor collects assets, settles liabilities, and distributes what remains to the beneficiaries. The executor may be a dependable family member, a close associate, or a professional advisor whom the testator trusts to carry out their wishes.

Beneficiaries — those who inherit under the Will — can include family members, friends, dependents, or even charitable institutions. They must be identified clearly. A beneficiary, however, cannot act as a witness to the Will. A witness can be any other person who is independent.

Updating and Registering the Will

A Will should evolve as life does. Marriage, children, sale of property, or change in wealth are natural triggers for review. The testator can modify it by executing a Codicil (an amendment) or by making a new Will. The latest valid Will prevails.

Registration of a Will is optional but advisable. It adds authenticity, deters tampering, and ensures safe custody. It can be registered with the local Sub-Registrar during the testator’s lifetime and revoked or replaced anytime.

Unlike other legal documents, a Will requires no stamp duty — it takes effect only after death and involves no immediate transfer.

Storage and Accessibility

A Will is only effective if it can be found. It may be kept in a bank locker, with the executor or lawyer, or deposited in sealed custody with the Registrar. Confidentiality is important, but accessibility is essential. The executor should always know where the Will is stored.

Probate: When the Court Steps In

Probate is the court’s official confirmation that a Will is genuine and that the executor is authorised to act on it. It is mandatory when a Will made by a Hindu, Buddhist, Jain, or Sikh concerns property within Mumbai, Chennai, or Kolkata. Elsewhere, it is optional but often sought for legal certainty or to satisfy banks and registrars.

Obtaining probate can be a lengthy process, more so when disputes emerge over the testator’s state of mind, external influence, or the validity of the Will. Proper attestation, clarity, and a medical certificate at execution substantially reduce such risks.

Practical Steps for Testators

Even a perfect Will can create confusion if no one knows what assets exist. To prevent this:

Maintain an updated Asset Information Sheet listing all bank accounts, properties, and investments.

Review it every five years or after major life events.

Align nominees and joint holders with the Will’s directions.

Ensure the executor knows where records are kept.

Wealth that cannot be traced is wealth lost. The true strength of estate planning lies in accessibility, not secrecy.

When a Will Isn’t Enough: The Role of Private Trusts

While a Will remains the cornerstone of succession, it also has its limits. It takes effect only after death and becomes public once probated. Any heir can contest it, causing years of delay and distress. For families with complex estates, shareholdings, or global assets, this can paralyse administration.

To address these challenges, many families are turning to Private Discretionary Trusts — living structures that combine control, privacy, and continuity.

The Private Trust Advantage

A Private Trust is created during one’s lifetime. The Settlor transfers assets to the trust held through the trustees, entrusting them to manage and apply those assets in accordance with the wishes of the Settlor and the interests of the beneficiaries. It becomes effective immediately — ensuring seamless continuity without court intervention.

In a discretionary trust, trustees have the freedom to decide when and how to distribute income or assets, depending on beneficiaries’ needs. It’s particularly useful for minors, dependents, or when families prefer flexibility over rigid division.

Unlike a Will, which can be challenged, a trust is private and far more difficult to dispute, since ownership has already shifted to the trustees.

Structuring

A trust is set up through a trust deed outlining:

• The settlor (creator),
• The trustees (managers),
• The beneficiaries (recipients), and
• The terms of distribution.

If the trust includes immovable property, the deed must be registered and stamp duty paid as per the applicable State law. If it holds only movable assets like shares or cash, simple stamping is sufficient, and no registration is required.

Trusts often bring additional tax benefits as well, though this article focuses only on their structural and succession advantages.”

Will and Trust — Not Either/Or

A Will and a Trust are not alternatives; they are complements. The Will can cover assets not transferred into the trust and provide personal instructions. The Trust can manage core wealth, offering privacy, control, and smooth transition.

An integrated estate plan that combines both ensures that wealth passes without delay or dispute — preserving family harmony and financial continuity.

Estate planning is not about documents — it’s about peace of mind. Whether through a Will, a Trust, or both, the objective remains the same: to protect your family, give certainty, and preserve legacy. In the end, the most meaningful inheritance you can leave behind is not wealth, but clarity.