India: Will Or Gift?

Last Updated: 25 August 2017
Article by Priyanka Shetty

What is a will?

A will is a legal declaration of the intention of a testator (person making the will) with respect to his property, which he desires to be carried into effect after his death.

A will shall be operational only after the death of the testator and under no situation will it be operational when the testator is alive.  

Why is making a will significant? Why should one make it?

The general perception is that wills are only made post retirement or by the terminally ill who have substantial assets and multiple beneficiaries. This appears to be changing slowly with more and more people wanting clarity on who will enjoy their assets post their time.

The property can be bequeathed under a will to even a stranger.  If one wants to divide the property unevenly amongst his beneficiaries, making a will is absolutely necessary.

It may as well be that a person dies without making a will, i.e., dies intestate. In such a situation, the property is distributed amongst the deceased's relatives, either by blood or by marriage. If a person dies intestate in India, the property is distributed as per the succession laws of the deceased's religion. The property does not automatically devolve upon the spouse because children and other relatives can also claim stake in the property.

What can you will?

The testator can bequeath all of his property over which he has complete ownership. This includes jewellery, vehicle, land, flats and fixed deposits.

A property in which the testator does not have ownership but has a right through a lease deed can be a part of the will. However, the beneficiary will be able to enjoy the property only till the end of the lease period and not after the lease expires. If the lease period ends when the testator is alive, the beneficiary cannot claim any right to that property.

Similarly, the testator cannot assign his ancestral property to any person through his will.

Requirements for making a Will

  • It may be handwritten and/or typed. It need not be on a stamp paper and no stamp duty is attracted.
  • It should appoint an executor who will look after/administer the testator's assets after his/her death and implement the will. An executor is usually a close friend, family member or trusted confidante. The executor can be a beneficiary under the will.
  • It should clearly provide for distribution of the movable and immovable assets to the beneficiaries.
  • It should include all the current and future assets of the testator.
  • the testator's signature should be clear and legible.
  • It should be signed in the presence of two witnesses. The witnesses should not be beneficiaries under the will. The witnesses should also sign the will in the testator's presence.
  • A will can be modified by executing an amendment to the original will, which in legal parlance is known as codicil. If there is any change in the assets or a change of heart in respect of any bequest, one can either make a completely fresh will or execute a codicil.

Who is an executor?

The executor is responsible for carrying out the intentions of the testator after the testator's death. It is always advisable to appoint a trusted person who will be able to handle the responsibilities of carrying out the wishes of the testator after his death.

Though a testator is free to appoint any person to execute the will, usually family members, close friends, trusted confidantes are named as executors in a will. An executor appointed by the testator should be an unbiased one so as to avoid any conflict of interest between the executor and the beneficiaries. Although a beneficiary of the will can also be appointed as an executor, it is best to avoid the same as it might increase the chances of disputes. It is advisable to appoint more than one executor in a will.

What is the role of an executor?

The role of the executor extends but is not restricted to taking care of the testator's funeral expenses, making an account of the true estimate of both movable and immovable property, paying off the testator's debts, administering the property of the testator and also applying for a probate.

Who is an attesting witness?

For a will to be valid, atleast two witnesses have to sign the will after the testator certifying that the testator has signed the Will in their presence. The date and place should be mentioned at the bottom of the will and should be clear and legible. It is advisable that a family doctor or any medical professional signs as the witness as it will help prove that the testator was in a sound state of mind when making the will.  

Are you required to register a will?

A will is not required to be compulsorily registered. It is the testator's choice as to whether he wishes to register his will or not. Registration of a will does not confer any special status to the will nor does it prevent the testator from revoking or modifying his will subsequently. A registered will can be revoked or modified at any time prior to the death of the testator.

Be that as it may, if a will is registered, a copy shall be maintained by the office of the Registrar. Thus, if the original will is lost or destroyed, a copy of the will can be obtained from the Registry.

A testator can make changes in the will or revoke the will even after registration. If a registered will is revoked, it is advisable to register any subsequent will made by the testator.

What is a codicil?

If a testator intends to make minor changes to the will, without changing all the contents, he can do so by making a codicil to the will. A codicil is a part of the will, which must also be signed by the Testator and attested by two witnesses.  The testator can alter and revoke the codicil at any time.

It is advisable to make a codicil only to make minor changes to the will. At times, after making a will, the testator acquires new properties and makes multiple codicils to the original will. Although adding any number of codicils is permissible by law, it might complicate the interpretation of the will at a later stage. Thus, if there are substantial changes to the will, it is always advisable to make a new will rather than adding a codicil.

What is a probate?

On the death of the testator the property will not automatically pass on to the beneficiary. The executor is required to obtain a probate from the court of competent jurisdiction. A probate is a certificate issued by the court that the will is valid. Probate is granted only to the executor appointed by the will. It proves that it is the last and final will of the deceased. A probate is granted by the court with the court seal and also has a copy of the will attached to it. The court issues a notice to the beneficiaries and legal heirs so that they can file their objections, if any, to the grant of probate. If no objections are raised, the court grants probate to the executor who will thereafter give effect to the intentions of the testator and distribute the assets as per the will.

Do I will or gift?

This is a question that looms large when one wants to transfer assets to a family member.

A gift is a voluntary transfer of property from one person to another without compensation or any consideration.

Under a gift deed, the asset is transferred immediately. A gift comes into effect during the lifetime of the donor unlike the will that takes effect after the death of the testator. The person giving the gift is called the donor and the person receiving the gift is the donee. Gift deeds are irrevocable and can be revoked only by the donee. Needless to say, the donor will not be able to claim ownership in the property if he decides to change his mind at a later stage.

A gift deed is a better alternative to distribute assets so as to avoid disputes among the legal heirs.  

A valid gift has to satisfy the following requirements:

  • Must be voluntary
  • Without any consideration
  • Accepted by the person to whom it is gifted.

The gift maybe accepted by the donee personally or someone on his behalf. The acceptance may either be express or implied.

Stamp Duty and Registration of gift deed

Registration of a gift deed is compulsory in the case of immovable property, irrespective of the value of the property. The gift deed must be signed by the donor and attested by two witnesses. 

Gift deeds attract stamp duty and the amount of stamp duty payable differs across states. In Maharashtra, payment of stamp duty is governed by Maharashtra Stamp Act, 1958 (Stamp Act).

As per the Stamp Act, if a residential property is gifted to a family member, i.e., husband, wife, son, daughter, grandson, granddaughter or wife of a deceased son, the stamp duty payable would be two hundred Indian rupees. If any other immovable property is gifted to a family member, i.e., husband, wife, brother or sister of the donor or any lineal ascendant (i.e. parents or grandparents) or any lineal descendant (i.e., children and grandchildren), the duty chargeable shall be 2%. If an immovable property is gifted to any other person, the stamp duty payable ranges from 3% to 5% of the market value of the immovable property, depending on the location of the property.  

Our View

A will may be a cheaper option for distributing property as no stamp duty is payable. One can also amend or revoke the will during one's life time. If one anticipates disputes in the future or would like the beneficiaries to have the ability to deal with the properties forthwith, one may choose the gift option. Needless to add, the donor cannot revoke the gift if he/she has a change of heart.

July 24, 2017

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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