When is the right time to draft a property will?

NEW DELHI: Rising number of COVID-19 cases related deaths have also sparked a crucial real estate discussion on the property inheritance. You must have seen family disputes over property matters languishing in the courts for years. This is because inheritance issues in India are very complicated and a single step can ensure your amicable distribution of your real estate assets.

What is a property will?

A property Will is a legal document which is a legal instrument. The property owner executes this document so that he can plan his succession. This is done so that the property can be distributed among legal heirs as per the desire of the property owner.

Delhi-based advocate Moiz Rafique explains, “This is a legal document and drafting a property Will is basically a concept whereby it is seen that the property is distributed as per the desire and will of the person who owns it when he is not there. Any person who is above the age of 18 can prepare a property Will and when the person is of mature mind. He or she needs to have a very sound understanding on how he wishes to distribute his property after death.”

Key things to remember:

Details of the testator needs to be there along with a legal declaration
Intention of the testator has to be there and division of property needs to be mentioned
Details of the beneficiaries need to be there
In case of a minor, testator has power to choose the guardian of the property till the minor attains maturity
How important is a property Will, and how can one draft the same?

In several cases, family disputes occur due to non-availability of a legal distribution of a property. After the death of a person, his property devolves in two ways – according to his Will i.e. testamentary, or according to the respective laws of succession, when no Will is made. If a person dies without a will, the law of succession applies based on the religion of the deceased.

Most of us don’t bother to write a Will based on the assumption that it is required only for those who are wealthy or very rich. This is where the problem starts!

According to legal experts, you should create a will early in your life. There is no right or wrong age to write a Will. There is no fixed format for a Will. You don’t even need a lawyer to draft it. You can just write your Will on a plain paper.

“One should definitely register a property Will with the sub-registrar for more authenticity. It makes a Will legally valid. But even if a Will is not registered it can be taken up in the civil court for probate. Registered or unregistered will needs to be taken to the civil court with jurisdiction, asking for a probate. Once the probate is given, thereafter the beneficiary will have to get the property in his or her name. On the basis of the probate then only he can further sell off the property,” adds Rafique.

A will can be revoked and there are two types of revocations. You will have to go to the sub-registrar office to revoke the registered Will. In case of unregistered Will, the testator can revoke the Will.

Succession planning is important to ensure your property is distributed without family disputes and also to give you an idea of your finances and equal distribution of the same among all family members.