It is advisable to appoint an executor in your will - Livemint

My husband passed away five years ago and he has not left a will. I have a property that I jointly own with him. My daughter is married. My son is unmarried and he stays with me. I want to make a will. Can I make a will for the entire house or just half of it since I am a joint owner?
—Swati Nair

We are assuming that you and your husband held the said property as co-owners and not as joint owners and that each of you had a 50% share; your husband was a Hindu and was governed by the provisions of the Hindu Succession Act, 1956 (Act) on the date of his demise; the property is self acquired and you and your two children are the only class I heirs of your husband.

Section 8 of the Act lays down the general rules of succession in the case of Hindu males who have died intestate and inter alia states that the property shall devolve firstly, upon the heirs of the deceased, being class I heirs and secondly, if there are no class I heirs, then upon the class II heirs.

Assuming that you and your children are the only class I heirs of your husband surviving at the time of his demise, 50% share of your husband in the said property shall devolve upon you and your children in accordance with the provisions of Section 10 of the Act. Section 10 of the Act lays down the rules for distribution of property among class I heirs of the deceased, and inter-alia states the widow of the deceased shall take one share and the son and the daughter of the deceased shall each take one share in the property of the deceased.

Hence, the 50% share of your husband shall be divided into three equal parts whereby you, your son and daughter shall each be entitled to about 16.66% share in the said property.

You previously being the owner of 50% share in the said property are now the owner of 66.66% share in the said property and your son and daughter each own 16.66% share in it. At the time of drafting your will you can bequeath to any person of your choice your share in the said property.

While drafting a will you must keep in mind that the will must be in writing; the testator (i.e. you in this particular case) must sign it and shall be attested (signed) by two or more witnesses. It is advisable that you appoint an executor in your will. This is done in case the will is challenged. All the property bequeathed under the will shall vest in the executor.

Do remember that under Section 67 of the Indian Succession Act, 1925, a legacy to the attesting witness of a will is void under the section, i.e. you cannot bequeath any part of your property to a person who has signed your will as a witness as that bequest shall be void.

Also as per the Registration Act, 1908, a will is not a compulsorily registerable document and there is no stamp duty payable on a will.



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