Where there is a will…

It was during the recent visit to USA, that I came across a shocking situation. A middle-aged couple from Gujarat, who were relatives of my client, had recently passed away in a tragic car crash.

They had moved from India and settled in USA almost a decade ago for a software job, and both of their children are natural US-born citizens. The grandparents hurried to USA and took care of all formalities, including the funeral and last rites.

When the time came to claim the children and arrange for them to return to India, they were in for a shock — the US Government had placed the kids in foster care already.

Further enquiries revealed that only a court of law could decide if the children remained in foster care or went with the grandparents, because the parents hadn't written a will designating a guardian for the children, in the event of something happening to both of them.

The fact that the children lost both their parents in a horrifying accident was tragic enough, but making the matter worse was the fact that the parents died intestate, and thus, the custody of the children became an issue for the courts to decide.

Yes, sadly enough, if a person dies intestate in USA, and has young children, and the remaining parent is also deceased or unavailable, the courts will determine who gets custody of the children.

What a tragic situation for the children to be in! Coping with losing both parents is bad enough, without the added trauma of settling into a foster home and adjusting to an alien culture until the court can make up its mind on where they should go, and who should care for them.

LEGAL DECLARATION

Undoubtedly, social systems differ from country to country. Foster care is a common procedure in USA, but alien to Indian culture. While we aren't judging the correctness of foreign social rules, one cannot help thinking that a simple thing like a will could have made a lot of difference to those kids. Eventually, the court did grant the grandparents' custody of those children, with the intervention of the Indian Embassy, but a will could have prevented a long wait, and astronomical legal expenses.

A will is a simple enough legal declaration, by which a person provides for the transfer of his/her property at death. Perhaps, because of its association with death, it is a document that most people postpone drawing up, especially in India.

Due to its association with death, it is considered inauspicious. However, not drawing up a will these days is more inauspicious. If someone dies intestate in India, something as simple as transfer of a phone line or an LPG connection requires that the nominee prove he/she is a legal heir of the deceased in addition to getting letters from the remaining legal heirs. People also desist from discussing this issue with their parents, in view of their sentiments and the inauspicious tag attached to a will.

ASSETS FOR THE FUTURE

Unless the older generation, for some reason, seeks professional advice and comes across a professional consultant who provides the right advice, they don't foresee such issues, and are, therefore, blissfully ignorant of them. In their belief that they are leaving assets for their children, and that they have provided for the prosperity of the family, they unknowingly leave behind many a legal tangle. A will has the legal acceptance, even if the Testator (who writes the will) writes on a white paper with no formal style, with two witnesses, and which is ambulatory & revocable during his lifetime to accommodate change of events such as birth, marriage, divorce, family chemistry, wealth variation etc.

‘Where there is a will there is a way' goes an old English adage. Someone made a witticism out of it and turned it around to state ‘Where there is a will… there are many worried relatives' To top it all, however, where there is no will… there are umpteen legal hassles.

(The author is a Coimbatore-based chartered accountant.)