Is it necessary to prepare a will for distributing property among heirs? If I make a will, whom can I appoint as the executor? Further, do witnesses to my will need to know the contents of the will?
There is no law that requires any person to compulsorily make a will. If one dies without drawing a will, the property will be distributed among heirs as per the personal laws applicable. For example, the Hindu Succession Act, 1956, will govern intestate succession of Hindus, the Indian Succession Act, 1925, will govern Christians, Parsis and Jews, and Muslims will be governed by Shariah. The primary benefit of making a will is that heirs can be chosen who will inherit specific portions of the estate and even bequests to persons other than legal heirs can be made.
Anyone with sound mind and capable of contracting can be appointed as an executor. Normally one would appoint someone who is capable of administering the estate and effectively oversee the distribution of the same. It is preferable to seek consent of the person whom you wish to appoint as an executor because if such a person refuses to act after the demise of the testator, it could hamper the distribution of the estate. Often family members are appointed as executors, but lawyers, chartered accountants or other professionals could also be appointed as executors.
While it is compulsory for a will to be witnessed/attested by two or more persons, the witnesses need not know the contents of a will.
I live in a flat in Mumbai which is tenanted. Can I bequeath this flat to my son in a will drawn by me?
The laws which govern rent control and tenancy in most states contain a provision that tenanted property cannot be bequeathed and such laws contain specific provisions for the succession to tenancy rights. The Maharashtra Rent Control Act, 1999, provides that with respect to residential premises that are tenanted, a member of the tenant’s family who was residing with such tenant at the time of his/her death will be deemed to be the next tenant. If there was no such family member residing with the tenant at the time of his/her death, then the tenancy shall pass on to a legal heir of the tenant.
If, however, there are more than one such legal heirs and there arises a dispute among them as to the tenancy, then a court of competent jurisdiction will decide as to whom the tenancy should go to.
Therefore, you cannot bequeath the tenancy rights of your flat to your son. However, if your son is living with you at the time of your death, he will be deemed to be the rightful tenant of the flat.
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