Estate planning is often one of the most overlooked aspects of financial planning. It’s not easy to confront the question, “What will happen to my assets and loved ones when I die?” This discomfort leads many, particularly in India, to delay or sidestep the process entirely. However, the only way to protect your loved ones and your legacy in the future is by properly planning your estate. The journey begins with a basic understanding of the tools available to you and how to use them effectively. A will is an important part of estate planning. In this article, we will discuss the different types of wills, including living wills and traditional wills. We will explain which one is a living will, which one is a regular will, and how they differ. Ultimately, you’ll learn which one you might need: a living will or a regular will.
What is a living will?
A living will is a legal document that allows you to express your wishes regarding end-of-life treatment and care in advance. Also known as an Advance Medical Directive, a living will helps you make choices about your medical care ahead of time, so if you can’t speak for yourself later—like if you’re in a coma or very ill—your wishes will still be followed.
Created when you are healthy and clear-headed, it serves as a powerful tool for maintaining control over your care and upholding your right to dignity.
In this document, you outline your preferences regarding medical treatments you wish or do not wish to receive if you become very ill, unconscious, or unable to make decisions for yourself.
A living will primarily addresses situations such as:
– Whether you want to be kept on life support.
– Your preferences for specific medical procedures or treatments
– Your wishes concerning pain relief and end-of-life care
Wondering when you could ever possibly need a living will?
Just think about this scenario. Let’s say you are on a trip, and an accident leaves you in a critical condition, unable to communicate. In the critical hours or days that follow, doctors face tough choices about your treatment: Should they pursue aggressive interventions, like putting you on a ventilator, if you can’t breathe on your own? Would you want them to do everything possible to keep you alive if it means you might live in a very uncomfortable or difficult way?
Having a clear living will means your family and friends will know exactly what you want—so they don’t have to guess during a really tough time.
The legal recognition of living wills was established through the landmark case of Common Cause vs. Union of India (2018), where the Supreme Court recognised the “right to die with dignity” as a fundamental right under Article 21, thereby establishing the framework for creating and implementing living wills.
What are the features of a living will?
Medical directives
A living will allows you to specify the medical treatments or procedures you wish to receive or decline, such as the use of life support, feeding tubes, or resuscitation (CPR). This ensures that your preferences regarding serious medical care are clearly documented and respected when the time comes.
Healthcare proxy
You can designate a trusted person as your healthcare proxy or surrogate decision-maker to make healthcare decisions on your behalf if you are unable to do so. This appointment helps your loved ones know who will speak for you regarding medical matters.
Activation during the lifetime of the testator
A living will only becomes effective if you are alive but unable to communicate or make decisions due to illness or injury (for example, if you are in a coma or gravely ill). The individual who is making the will is the testator.
Focus on terminal care
Living wills are especially relevant in cases involving terminal illnesses or end-of-life care. They provide guidance to doctors and family members about your wishes when you are seriously ill and cannot express yourself, eliminating uncertainty about your desires in such critical situations.
What are the rules for creating a living will?
- The individual creating the will must be at least 18 years old and of sound mind.
- A guardian or surrogate decision-maker must be appointed from family members or close relatives.
- The document must be witnessed by two independent witnesses.
- It must be attested by a notary public or a gazetted officer.
- Copies of the living will must be shared with the designated custodians and healthcare providers.
What is a will?
A will is a formal legal document that outlines your wishes regarding the distribution of your assets, such as your house, bank balance, investments, and valuables. It specifies who should inherit these assets and who will manage your estate to ensure your wishes are properly carried out. Additionally, if needed, it appoints a guardian to take care of your minor children in the event that you and your spouse pass away.
By creating a regular will, you provide a clear set of instructions, which not only gives you peace of mind but also helps prevent confusion or disputes among family members in the future.
In India, regular wills are governed by Section 2(h) of the Indian Succession Act, 1925. This law applies across different communities, although certain religious and personal laws may also influence the will, depending on the religion of the individual creating it.
What are the key features of a will?
Asset distribution
A will clearly outlines who should receive your property, money, investments, and personal belongings. This ensures that your assets go to the individuals you choose, minimising confusion and potential conflicts.
Appointing an executor
You can designate a trusted person, known as an executor, to carry out your wishes. The executor is responsible for managing your estate, ensuring that debts are settled, and distributing your assets according to your will.
Guardian for minor children
If you have minor children (under 18 years old), a will allows you to appoint a trusted guardian for their care. This ensures their well-being is prioritized, even in your absence.
Debt settlement
Your will can provide clear instructions on how to address any loans, liabilities, or outstanding debts. This helps to avoid financial complications for your family following your passing.
Takes effect after demise
A will becomes effective only after your passing. Until that time, it serves as a document prepared for the future—one you can update, revise, or cancel as your life and circumstances evolve.
What are the rules for making a will?
- The will must be written down—either by hand or typed.
- The individual creating the will (referred to as the testator) must sign it personally. This document cannot be executed through a Power of Attorney.
- At least two independent witnesses must be present to observe the testator signing the document. They must also sign the document in the presence of the testator.
- The testator must be at least 18 years old, of sound mind, acting voluntarily, and free from any pressure, threat, or coercion.
Also read : How to make a will in India?
Is probate of a will mandatory?
Probate refers to the official validation of a will by a court. In India, probate is not always required; however, it is mandatory in certain cases:
- If the will was made and executed in Mumbai, Chennai, or Kolkata.
- If the will addresses immovable property in these three cities.
- If the will is contested or disputed by legal heirs.
In other instances, while probate may not be compulsory, obtaining it can provide legal certainty and facilitate a smoother transfer of property.
Living will vs will: Which one should you choose when?
| Aspect | Living Will | Regular Will |
|---|---|---|
| Purpose | Medical treatment preferences during incapacity | Asset distribution after demise |
| Activation | During lifetime when incapacitated | After demise only |
| Legal Authority | Healthcare proxy makes medical decisions | Executor manages estate |
| Content | Medical directives, treatment preferences | Property, assets, guardianship |
| Governing Law | Supreme Court guidelines (2018, 2023) | Section 2(h) of Indian Succession Act, 1925 |
| Probate Requirement | No probate required | May require probate |
| Duration | Can be revoked/modified while competent | Permanent after demise |
| Witnesses | Two witnesses plus notary/gazetted officer | Two witnesses required |
Shraddha Nileshwar, Vertical Head of Will & Estate Planning at 1 Finance suggests the following:
Choose a living will if:
– You have strong preferences regarding end-of-life medical care.
– You want to avoid being kept alive artificially in terminal conditions.
– You have witnessed the prolonged suffering of loved ones on life support.
– You want to relieve your family of difficult medical decisions. – You have specific religious or personal beliefs about death and dignity.
Choose a will if:
– You own significant assets, property, or investments.
– You have minor children who require guardianship.
– You want to specify how debts should be settled.
– You have particular charitable or family bequests in mind.
– You want to avoid intestate succession (dying without a will).
If you’re thinking about making a will, it’s important to get the right advice. Our financial advisors are here to help you understand the process and make sure everything is set up the way you want. Talk to our Qualified Financial Advisor.
