Planning to Invest in Real Estate? Know Everything About Will of Property

Real estate has been the preferred investment choice for Indians since time immemorial. This sentiment persists from the times when landowners were agriculturalists, and the crops symbolised wealth. We live in very different times now, but real estate still remains the greatest wealth creator for investors. This is reflected in the booming demand for housing, particularly in urban centres and metro cities like Mumbai and Delhi.

Apart from its association with wealth, real estate or residential property has great emotional value for property owners. It is a sign of personal achievement, a home for the family, and a legacy to be bequeathed to one's children. Going ahead with this understanding, let us look at all there is to know about a will of property.

What is a will?

A will is a legal document created by a person declaring his/her intention or wishes regarding the distribution of his/her assets or properties after his/her death. Section 2(h) of The Indian Succession Act, 1925 defines a will as a testator’s intention in lieu of his property which he wishes to be carried into effect post his death in a legal manner. So, if you own a real estate property such as land, house, apartment, or flat and desire the ownership to pass to a person or an institution after your death, it is a good idea to draft and register a will of property expressing your wishes. 

Why do I need a will?

Real estate or property is a major financial investment. The appreciation of the property value is a source of transgenerational wealth creation. This means that your investment in a residential property can help you reap benefits in terms of rental earnings and can be a great asset to leave to your family members or loved ones after your lifetime. A will is a legal document that allows the intended recipients to enjoy this wealth after your death. Drafting and registering a will keeps the property from passing to other unintended heirs or from legal disputes arising.

How can I draw up a will?

Any written document that states the writer's or testator's wishes about the distribution of his/her property after his/her demise is considered a will. However, it is a good idea to consult a legal expert or a lawyer to draft a will. This is because when a layman writes a will, it is likely to be in simple language and may be open to legal ambiguities and can lack clarity. Such a will can be contested in a court of law, causing legal hassles for the intended nominees.

A properly drafted one should have all the details of the testator and nominee and a detailed list of all the properties or assets and liabilities. It should contain details of the manner of distribution of assets intended after the liabilities are settled. To be effective, it is a good idea to nominate an executor and contain the signatures and details of the witnesses.

For a will to be legally valid, the testator must be sound and mentally competent. It is a good idea for the will to be accompanied by a fitness certificate from a registered doctor to avoid future hassles.

A will may or may not be registered, but a registered will carries more weightage legally than an unregistered will.

What kind of property can I bequeath in a will?

Any self-acquired or inherited property (apart from ancestral property) can be bequeathed in a will of property. In the case of ancestral property, the coparceners acquire the right of ownership over the next three generations at birth. The ownership is not passed on after the death of the previous owner or coparcener. This is why an ancestral property cannot be bequeathed in a will.

Suppose an ancestral property is partitioned and divided and the coparceners receive their respective shares. In that case, each can now bequeath his/her share in a will, which will be treated like self-acquired property.

A will supersedes the rights of the legal heir according to the laws of succession. So you can leave your property to anyone you choose, not only the legal heirs.

Am I relinquishing ownership by drafting a will?

A will only comes into effect after the demise of the testator. Making a will is not relinquishing or handing owner ownership of your real estate property in your lifetime. A will, once made, can be revoked by preparing a new or fresh will, by making a written declaration, and by simply destroying the existing will. A will can be revoked or changed at any time.

As a property owner or investor in real estate, it is a good idea to draft, sign, and register a proper will of property. This ensures that the wealth you have created is passed on to the right beneficiaries after your lifetime.