Keep­ing the peace among your heirs

To avoid fam­ily dis­putes at a later stage, it is ad­vis­able to clearly de­scribe in your will the por­tions of the im­move­able prop­erty your chil­dren will in­herit

HT Estates - - HTESTATES - Su­nil Tyagi

Mat­ters per­tain­ing to suc­ces­sion and in­her­i­tance of an in­di­vid­ual’s prop­er­ties are clas­si­fied in two cat­e­gories – tes­ta­men­tary suc­ces­sion and in­tes­tate suc­ces­sion. An in­di­vid­ual is said to die in­tes­tate if he has not ex­e­cuted any will. In tes­ta­men­tary suc­ces­sion, the dis­tri­bu­tion and in­her­i­tance of an in­di­vid­ual’s prop­er­ties is car­ried out as per the terms stated in his/ her will. In In­dia, tes­ta­men­tary suc­ces­sion is gov­erned by In­dian Suc­ces­sion Act, 1925.

A will is ex­e­cuted with the in­ten­tion to en­sure that the dis­pute over prop­erty of an in­di­vid­ual are dis­pelled or at least mit­i­gated. Nev­er­the­less, cer­tain dis­putes may arise amongst the fu­ture ben­e­fi­cia­ries, es­pe­cially if im­move­able prop­er­ties are dis­trib­uted amongst more than one ben­e­fi­ciary. To avoid these dis­putes in such a sit­u­a­tion there are cer­tain points to be kept in mind while draft­ing a will.

In case an in­di­vid­ual has an im­move­able prop­erty that can be di­vided into clear iden­ti­fi­able and as­cer­tain­able por­tions, it is ad­vis­able to clearly de­scribe who will get what por­tion of the im­move­able prop­erty in the will.

For in­stance, A owns a free­hold three-storeyed bun­ga­low that he wants to will in favour of his daugh­ters, D1 and D2 and son S1. If the will says that the im­move­able prop­erty will be in­her­ited equally by D1, D2 and S1 on the demise of A, then af­ter the demise of A, dis­pute may arise as to who will get what por­tion. If there is no dis­pute and D1, D2 and S1 mu­tu­ally di­vide the im­move­able prop­erty, they will have to ex­e­cute a par­ti­tion deed which is re­quired to be ap­pro­pri­ately stamped and reg­is­tered.

Un­der the In­dian Stamp Act, 1899, no stamp duty is payable on a will. Thus, a will can even be ex­e­cuted on a plain pa­per, how­ever, on a par­ti­tion deed ap­pro­pri­ate stamp duty will have to be paid.

If A’s will, clearly men­tions that D1 shall get ground floor, D2 shall get first floor and S1 shall get sec­ond floor, it will serve a two-fold pur­pose. Firstly, it will en­sure that af­ter the demise of A, there is no dis­pute be­tween the ben­e­fi­cia­ries with re­spect to who shall have what por­tion. Se­condly, the ben­e­fi­cia­ries will not have to ex­e­cute a par­ti­tion deed and shall save stamp duty on the same.

It is also ad­vis­able to be very clear in the will about the us­age and main­te­nance of com­mon ar­eas and util­i­ties in the im­move­able prop­erty; for in­stance, the ter­race, park­ing space(s), lawn(s), sewage and wa­ter pipe­lines, etc. Fur­ther, the rights for fur­ther con­struc­tion that may arise due to change in gov­ern­men­tal pol­icy should also be clearly de­fined. The share from any in­crease in the fu­ture in the floor area ra­tio that may en­able the con­struc­tion of a third floor should also be cat­e­gor­i­cally de­volved by A in his will be­tween D1, D2 and S1 to avoid con­fu­sion.

Even though un­der In­dian Reg­is­tra­tion Act, 1908, it is not manda­tory to register a will as an un­reg­is­tered will is con­sid­ered to be a valid le­gal in­stru­ment, if it has been prop­erly ex­e­cuted, it is prefer­able to register a will within one’s life­time.

Thus, a clear de­vo­lu­tion of in­ter­est in dif­fer­ent por­tions of im­move­able prop­erty amongst the ben­e­fi­cia­ries in the will it­self is ad­vis­able to avoid dis­putes in the fu­ture. pos­si­ble for me to stop pay­ing EMIs for 11 months?

— Rabindra Singh in­stall­ments as well as the in­stall­ments of the top-up loan it­self.

The best op­tion be­fore you is to get an ed­u­ca­tion loan (even though you may not need it) to pay the course fees and use the money that you have saved to pay off the home loan in­stall­ments. Is there a bank that of­fers a home loan scheme where there is a mora­to­rium of 18 months to two years for an un­der-con­struc­tion prop­erty? This would mean that I don’t have to pay any money for 18 months and my EMI will start only from the 19th month. Please ad­vise.

— San­jay Shah To the best of our knowl­edge, no bank pro­vides com­plete mora­to­rium for home loans. Most lenders of­fer con­struc­tion-linked loan plans wherein you pay the sim­ple in­ter­est for the pe­riod of con­struc­tion (also known as pre-EMI in­ter­est) and the EMI, which in­cludes pay­ment to­wards prin­ci­ple amount, that starts once the full loan has been dis­bursed. The in­ter­est payable be­fore reg­u­lar EMI starts will be on the amounts dis­bursed till date.

Lenders are choosy about which un­der-con­struc­tion pro­ject they will fund. So, make sure that the pro­ject you se­lect is ap­proved by the len­der of your choice. Of course some builders of­fer you schemes where they will bear this pre-EMI in­ter­est amount dur­ing the con­struc­tion pe­riod. This is ei­ther a sep­a­rate ar­range­ment be­tween you and the builder or a tri­par­tite ar­range­ment be­tween the builder, your­self and the bank. In ei­ther case if the builder doesn’t pay the pre-EMI in­ter­est to the bank for any rea­son, then you will have to still pay the same to the bank. Not do­ing so will re­flect against your credit re­port.


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