Study the applicable personal law before writing a Will on your own
Personal laws could impact the extent to which the properties can be willed away by you and to whom
Are online platforms safe to make a Will?
In India, we have different personal laws that apply to different religions and communities, even in respect of testamentary succession (that is, succession through a Will). Therefore, it is important to understand the personal law applicable to you before you write your Will. This could impact the extent to which the properties can be willed away by you and to whom. Please also ascertain whether the interest that you hold in the property can be willed (for example: in case of joint ownership, the interest of the deceased joint holder will vest in the surviving joint holder).
Therefore, while it is possible for you to draw up your own Will using an online platform, please ensure that you are legally able to give effect to your intentions through a Will, which is so drafted and that your intentions are not defeated.
My sister is emigrating to France. There is a house in Delhi, which is in her name. She wants to gift this house to me. How should she go about it? Is a gift deed enough for this purpose? Is there any need for her to include this transfer in her Will as well?
If your sister transfers the house to you during her lifetime through a gift deed, then it does not have to be bequeathed to you under her Will, as the title to the house would transfer to you during her lifetime itself and the house will no longer remain her asset to bequeath.
Please note that a gift deed must be effected in the manner set out in Sections 122 and 123 of The Transfer of Property Act, 1882. According to the provisions of The Transfer of Property Act, 1882, a gift of immovable property (which would include your house), must be effected by a registered instrument signed by or on behalf of your sister (as donor), and attested by at least two witnesses. The gift would have to be accepted by you (as donee) during your lifetime.
Stamp duty would have to be paid on the gift deed prior to its execution, as per the relevant laws of the state where the property is situated and where the gift deed is executed.
While some states have a lower stamp duty in the case of gift to a close relative (for example, a gift in favour of a sister), this is not the case in Delhi. However, there is a concession in stamp duty if the immovable property is held by a woman.
Further, the gift deed would need to be registered within a period of four months from the date of execution, as per the applicable provisions of the Registration Act, 1908, with the applicable sub-registrar of assurances.
Applicable registration charges would also be required to be paid at the time of registering the gift deed.
What are the advantages of a married couple holding assets such as gold or real estate jointly?
Assets such as real estate can be purchased either as ‘joint tenants’ or as ‘tenants in common’. In the case of a joint tenancy, upon the death of one of the joint owners, the interest of the deceased joint-owner will automatically pass to the surviving joint-owner, whereas in the case of ‘tenants in common’, the interest of the deceased tenant in common will pass to his/her heirs (as per the Will or as per the laws of succession applicable to the deceased at the time of his/ her death) and not the surviving tenant in common.
The advantage of holding property jointly is that on the death of one spouse, the property automatically vests in the other spouse and this would protect the rights of the surviving spouse from claims from other heirs.
If you intend on purchasing property with your spouse as joint tenants, please ensure that your title document/ conveyance is drafted to reflect this. Please also consult your tax advisers on the tax implications of such joint purchase and holding, in case any income will be earned by you on the jointly held property.
Marylou Bilawala is partner, Wadia Ghandy & Co. Advocates, Solicitors and Notaries
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