We are two brothers with two properties. The property in Haryana is registered jointly in my brother’s and my name, though it is occupied by me at present. The other property in Rajasthan is registered in my parents’ name in which my brother stays along with my parents and his family. My brother and I want to own the respective properties in which we live to avoid any issues for our next generation. Should our parents make a will?
With regard to the property in Haryana, which is jointly registered in your name and your brother’s name, the question of your parents executing a will to bequeath the property does not arise as the said property is jointly owned by your brother and you. In other words, since the property is jointly registered in your brother’s and your name, your parents do not have the ownership of the same and hence cannot bequeath it through their will.
The following acts may be done so as to have the entire property registered in your name:
• Your brother may execute a gift deed and gift his share in the property to you.
• You may purchase your brother’s share in the property for a consideration by executing a sale deed reflecting the same.
• Since the property is jointly owned, your brother may release his share in the property to you by executing a release deed reflecting the same.
Keep in mind that stamp duty would need to be paid on the gift deed, sale deed or release deed, as the case may be, as per the stamp laws applicable to the state of Haryana.
With regard to the property in Rajasthan, which is registered in the name of your parents, the following acts may be done so as to have the said property transferred to your brother’s name:
• Your parents may execute a will bequeathing the said property to your brother which will devolve upon him on their demise.
• Your parents may gift the said property to your brother by executing a gift deed reflecting the same.
• Your brother may purchase the property for a consideration from your parents by executing a sale deed reflecting the same.
As stated above, if a gift deed or sale deed is paid, stamp duty would have to be paid thereon, as per the stamp laws applicable in Rajasthan.
Shabnum Kajiji is partner, Wadia Ghandy & Co. Advocates, Solicitors and Notaries
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