August 20, 2026

You may not be able to make life fair for your child, but thoughtful planning can help make their future secure, dignified and joyful. For parents of a child with a disability or developmental condition, planning for the future goes beyond providing for their immediate needs. The real concern is often: Who will care for my child, and how will their financial needs be met when I am no longer around? A Private Family Trust can provide benefits and a structured solution by setting aside assets exclusively for the child’s long-term care and well-being. How to set up a Private Trust for Special needs children? 1. Settlors & Beneficiary The parents can establish the Trust as Settlors, with the special needs child as the Beneficiary. Assets can be transferred to the Trust during the parent’s lifetime, and other family members may also contribute. 2. Trustees Parents may initially act as Trustees and appoint Successor Trustees to take over later. A combination of family members and professional Trustees can be considered as family members understand the child’s needs, while professionals can provide independent oversight and financial expertise. Having more than one Trustee also creates a useful maker-checker mechanism. 3. Providing for the Child The Trust Deed can specify how the Trust Fund may be used for the child’s medical care, education, therapy and development, accommodation, caregivers, domestic help, transportation and day-to-day living expenses. 4. Successor Beneficiaries If assets remain after the lifetime of the special needs child, the Trust Deed can identify Successor Beneficiaries, such as siblings or other family members, who will receive the residual Trust Fund. 5. Protector A Protector can provide an additional layer of oversight. The Protector can supervise the Trustees and, where appropriate, be given powers to replace Trustees who are not acting in the child’s best interests. This can be particularly valuable where siblings may not be able or may not wish to undertake the day-to-day responsibility of Trust managment. 6. Investment & Distribution The Trust Deed should establish clear guidelines for investment and distribution of Trust assets, with the primary objective of ensuring sustainable funding for the child’s lifetime needs. Depending on the family’s circumstances, professional investment advice or an Investment Advisory Board may also be considered. 7. Segregation of Assets A Trust keeps the assets earmarked for the special needs child. This reduces reliance on the assumption that siblings or other family members will continue funding the child’s needs from their own resources. 8. Start Early Setting up the Trust early allows time to establish bank and investment accounts, gradually transfer assets and familiarise Trustees with its administration. The structure can also be reviewed and amended as circumstances evolve. 9. Letter of Wishes A Letter of Wishes can provide successor Trustees with practical guidance about the child’s routine, medical care, education, preferences, likes and dislikes, and other personal needs. It can also guide Trustees on adapting to the child’s changing circumstances—for example, if the child eventually develops the capacity to participate in financial decisions. Conclusion: Planning today for a secure tomorrow A special needs trust is not merely about transferring wealth. It is about creating a framework of care, financial security and continuity for a child who may need lifelong support. With the right Trust structure, appropriate Trustees and clear instructions, parents can create a lasting safety net that continues to protect their child even when they are no longer able to do so themselves.

When parents have minor children, one of the most important decisions to consider while preparing a Will is – who will care for their children if they are no longer able to do so. Appointing a guardian is not merely a legal formality; it is a thoughtful decision that can have a lasting impact on the child’s upbringing, education, health and overall well-being. A Will allows parents to clearly express their wishes regarding who they would like to take responsibility for their minor children in their absence. Choosing a suitable guardian can provide the child with stability, care and support during an otherwise difficult period. In India, The Guardianship and Ward Act 1890 is a secular law and applies to all communities, which covers the procedure on how to file petitions in the Court for the appointment of a guardian. On the other hand, The Hindu Minority and Guardianship Act, 1956, which is applicable to Hindus gives Hindu parents the right to appoint a guardian through their Will.  Under the Hindu Minority and Guardianship Act,1956 the father and mother are the natural guardians of a minor child and it also provides rules for appointing guardians through a Will as discussed below.  Understanding Guardianship: A guardian is an individual who is legally appointed to care for a minor child when both parents are unable to do so. This appointment, when made under a Will, grants the guardian both physical custody and decision-making authority over the child’s welfare, including matters related to education, health, and upbringing. While appointing a guardian for a minor child one may choose a separate guardian for personal care and custody of the child and a separate guardian to manage the property which the child will inherit from parents. For example, if a child lives with his grandmother, she can be appointed as a guardian for personal care and the child’s uncle can be appointed to manage the property until the child attains the age of majority, i.e., 18 years and above. Hence, choosing the right guardian will require careful deliberation by the parents such that the guardian shares the values and life priorities and has an established relationship with your child.  The Legal Framework: When a person dies without appointing a guardian for their minor children in their Will, the Court must appoint one through a legal process. A petition is filed by an interested party, usually a close relative or family friends, in the Court where the minor resides. The petition must detail the minor’s situation, the deceased parent, and the proposed guardian, explaining why they are suitable for the role. The Court then issues a notice to all interested parties, such as close relatives, informing them of the proceedings. A hearing is held where the court reviews the petition and considers the best interests of the child before appointing a guardian. While courts act in the best interests of the child, they may not choose the person that the parents would have preferred. By appointing a guardian in the Will, a person can retain control over this crucial aspect of the child’s future. The appointed guardian will oversee the property left behind for a child only until the child reaches 18 years of age. There are specific restrictions regarding the management of immovable assets left for the child’s benefit. The guardian cannot sell, transfer, gift, or mortgage these assets without obtaining permission from the court, which grants such permission only if it is deemed necessary for the child’s best interest.  Once the child turns 18, they gain legal independence to inherit and manage the assets left to them. However, at such a young age, they may lack the necessary skills and knowledge to manage the property responsibly, potentially leading to poor investment decisions and squandering the inheritance. To prevent such issues, parents can establish a Testamentary Trust through a Will. The Trust can continue to hold the assets for the child’s benefit even after they reach the age of majority. Testamentary Trust:  A testamentary Trust created through a Will provides guidelines to the Trustees for investment, administration and distribution of assets for benefit of minor child and even afterwards. The Trust would provide for the child’s day-to-day expenses, health, education and support. It could provide that your child will have the ability to withdraw funds when they are older and wiser, say 50% to be withdrawn at age 25 and balance at age 30. The trust can mention that the trustees shall invest the trust assets in risk free products which will generate a regular cash flow to meet day-to-day expenses for education, buying a house, marriage expenses, etc.      Enough discretion shall be given to the trustees to provide for the best interest of the child under changing circumstances. If the parents outlive beyond the age of minority of the child, then such a Trust may never get created and the children can inherit the assets directly.  Key Considerations When Choosing a Guardian for Minor Children: Selecting a guardian for minor children is one of the most crucial decisions parents can make, as it can significantly impact the child’s well-being. While considering a guardian, their age and health are crucial. A younger guardian might be more physically capable of handling the demands of raising children, especially if the children are very young.   The geographical location of the guardian is another important consideration. If the guardian lives far away from the children’s current home, it’s likely that your child will be moving; requiring them to adapt to a new environment, school, and social circle.  It is essential to ensure that the person is not only willing but is also capable of serving as a guardian.  Once a guardian has been chosen, it is essential to formally document this decision in a Will. The Will should clearly state the name of the guardian and any specific wishes regarding the upbringing of the child.

With Indian families increasingly having children settled in the United States, succession planning for NRI and OCI children has become an important part of family wealth planning. Where parents continue to hold property, investments and financial assets in India, their eventual transfer requires consideration of Indian succession laws, FEMA regulations and applicable U.S. tax requirements. NRI Inheritance Laws in India Under inheritance laws in India, an NRI/OCI/PIO can generally inherit assets situated in India including immovable property, subject to the applicable laws governing the particular asset and applicable FEMA restrictions. India does not currently impose an inheritance tax merely because an asset is received by inheritance. However, tax may arise subsequently from income generated by the inherited asset or when it is sold. Ways to Plan the Succession There are several ways through which families can structure the transfer of Indian wealth to children residing in the USA: Nomination and Power of Attorney: Updated nominations can simplify the administration of financial assets, while a Power of Attorney can assist in managing Indian assets when family members are residing abroad. Neither should, however, be treated as a substitute for a comprehensive succession plan. NRI Property Inheritance in India and FEMA NRI property inheritance in India is also subject to FEMA and the regulations issued by the Reserve Bank of India. While an NRI or OCI may inherit eligible Indian property, inheritance and subsequent repatriation of sale proceeds are separate matters and involves regulatory requirements under FEMA. Maintaining title documents, succession documents, tax records and banking records can help facilitate the administration and, where permitted, transfer of inherited assets. Cross-Border Tax Considerations Cross border estate planning in India becomes particularly important where the beneficiary or the deceased has a connection with the USA. Indian tax consequences and U.S. estate, gift and reporting rules needs to be examined depending on the person’s status and the location of the assets. The tax treatment depends on the nature and location of the asset and the applicable laws; therefore, cross-border tax advice should be obtained before implementing the succession structure. Conclusion For families with children residing in the USA, inheritance planning should begin well before succession becomes an immediate concern. A combination of a Will, lifetime gift, private family trust, appropriate nominations and proper documentation can help create a clear framework for transferring family wealth. Effective succession planning for NRI and OCI children is ultimately about ensuring that Indian assets can pass to the next generation in a manner that is legally structured, tax-conscious and practical across jurisdictions.

Probate of Will in India: Probate is a certificate issued by a competent Court confirming the validity and due execution of a Will. It establishes that the Will was properly executed by a Testator having testamentary capacity and that it reflects the Testator’s intention. Is Probate Mandatory? Probate is generally not mandatory in India, but it provides court-certified confirmation of the Will’s validity and facilitates smooth transfer of the deceased’s assets to the beneficiaries. The earlier mandatory probate requirement for Wills made in Mumbai, Kolkata and Chennai was removed with effect from January 2026. Process: The Executor or person entitled to apply approaches the competent Court and establishes the Testator’s death, that the Will presented is the last Will, and that it was validly executed. Notices are issued to the next of kin and, where applicable, the public, inviting objections. A Will may be challenged on grounds such as fraud, coercion, undue influence, suspicious circumstances, forgery, improper execution, lack of testamentary capacity, or lack of knowledge and approval. If satisfied, the Court grants Probate, which can then be submitted to banks, land authorities and other institutions for transmission of assets to the Beneficiaries. There is no specific limitation period for applying for Probate. The Supreme Court in Kunvarjeet Singh Kandupkar v. Kirandeep Kaur, (2008) 8 SCC 463, recognised the right to apply as a continuous right, although unexplained delay may require justification before the Court. How to get a Succession Certificate in India A Succession Certificate is generally obtained where a person dies intestate, particularly where there are no surviving joint holders or nominees. It authorises the legal heirs to collect debts and securities of the deceased. Average time to obtain a Succession Certificate is anywhere between 6 to 12 months.   What is Letter of Administration A Letter of Administration (LOA) is generally granted where a person dies intestate or leaves a Will without appointing an Executor. It facilitates the administration and distribution of the deceased’s estate and may cover both movable and immovable assets. Procedure Petitions for a Succession Certificate or LOA are filed before the competent District Court or High Court. Notices are issued to interested parties, providing an opportunity to object. If the Court is satisfied and there are no valid objections, the relevant certificate or LOA is granted.