Deeds Agreements

Which Is Better a Will or a Gift Deed?

calendar03 Apr, 2023
timeReading Time: 6 Minutes
Which Is Better a Will or a Gift Deed

A will is a legal document that expresses a person’s wishes regarding how their property and assets should be distributed after their death. In India, the provisions for wills are governed by the Indian Succession Act, 1925[1]. Here are some of the key provisions:

Testamentary Capacity: The person making the will (the testator) must be of sound mind, memory, and understanding at the time of making the will.

Formalities: The will must be in writing, signed by the testator or by someone on their behalf in their presence and under their direction, and attested by at least two witnesses.

Revocation: The testator has the right to revoke or alter the will at any time during their lifetime.

Probate: Probate is the legal process of proving the authenticity of the will and obtaining a court order to administer the estate. It is not mandatory to obtain probate, but it can help to establish the validity of the will.

Intestate Succession: If a person dies without making a valid will, their estate is distributed according to the rules of intestate succession, which are laid down in the Indian Succession Act.

Bequests and Gifts: The testator can make specific bequests of property or gifts to individuals or charities, subject to certain restrictions.

Executors: The testator can appoint an executor to manage the estate and carry out the provisions of the will.

Overall, a will is an important legal document that can help ensure that a person’s wishes are carried out after their death. In addition, it is generally advised to have a legal expert/lawyer by your side so as to get a better understanding of the clauses or statements mentioned in the will and to make the transfer process hassle-free.

What Happens When You Write A Will In India?

There are several benefits of writing a will in India, some of which are:

  • Control over Distribution of Assets: A will enable a person to specify how their assets and properties will be distributed after their death. This gives the person greater control over the distribution of their assets and ensures that their wishes are carried out.
  • Avoidance of Disputes: A clear and well-drafted will can help avoid disputes between family members and other beneficiaries over the distribution of assets.
  • Protection of Assets: A will can help protect assets from being distributed in ways that the person did not intend or from being mismanaged by others.
  • Appointment of Guardians: A will can also be used to appoint guardians for minor children, ensuring that they are taken care of in the event of the person’s death.

The Indian Succession Act, 1925, provides for the following sections related to wills:

  • Section 59: This section defines a will and lays down the requirements for a valid will.
  • Section 60: This section defines the capacity of a person to make a will and lays down the conditions that must be met for a person to have the capacity to make a will.
  • Section 61: This section lays down the requirements for the execution of a will, including the requirement that the will must be signed by the testator or by someone on their behalf in their presence and under their direction.
  • Section 62: This section provides for the revocation of a will by the testator, either in part or in whole.
  • Section 63: This section provides for the revival of a revoked will, under certain conditions.
  • Section 64: This section provides for the alteration of a will by the testator, either by adding, deleting, or modifying the provisions of the will.
  • Section 65: This section provides for the republication of a will, which is necessary when the will has been altered or revoked.
  • Section 66: This section provides for the simultaneous execution of a will by two or more persons.

What Is A Gift Deed, And What Are Its Provisions According To Indian Laws?

A gift deed is a legal document that transfers ownership of movable or immovable property from one person (the donor) to another person (the done) without any consideration (money or other payment) in return. In India, the provisions for gift deeds are governed by the Transfer of Property Act, 1882. Here are some of the key provisions:

  • Voluntary Transfer: The transfer of property must be voluntary and made without any coercion or undue influence.
  • Acceptance: The done must accept the gift during the lifetime of the donor. If the done dies before accepting the gift, the gift becomes void.
  • Registration: Gift deeds for immovable property must be registered with the relevant authority in accordance with the Registration Act, 1908.
  • Stamp Duty: Gift deeds are subject to stamp duty, which varies depending on the value of the property and the state in which the property is located.
  • Tax Implications: Gift deeds may have tax implications for the donor and the done, and it is advisable to consult a tax expert before making a gift.
  • Revocation: A gift deed can be revoked if the donor and done mutually agree to do so, or if there is a breach of any condition or term of the gift deed.
  • Legal Rights: The done becomes the legal owner of the gifted property, and has the right to use, enjoy, and dispose of the property as they see fit.

Overall, a gift deed is a useful legal tool for transferring property without any monetary exchange. It is again advisable to consult a lawyer to ensure that the gift deed is drafted and executed properly in accordance with Indian laws.

What Happens When You Draft A Gift Deed In India?

The benefits of writing a gift deed in India are:

  • Transfer Of Ownership: A gift deed transfer’s ownership of a property from one person to another without any monetary consideration.
  • Avoidance of Disputes: A clear and well-drafted gift deed can help avoid disputes between family members or other beneficiaries over the transfer of a property.
  • Tax Benefits: In certain cases, a gift deed can provide tax benefits for both the donor and the done.
  • Planning For Future: A gift deed can be used as a planning tool for future property transfers, such as transferring property to heirs or setting up trusts.

The Indian Succession Act, 1925, provides for the following sections related to gift deeds:

  • Section 122: This section defines a gift and lays down the requirements for a valid gift deed.
  • Section 123: This section lays down the capacity of a person to make a gift, and provides that a person must be competent to make a contract in order to make a gift.
  • Section 124: This section provides for the transfer of possession of the gifted property to the done, and lays down the requirements for such transfer.
  • Section 125: This section provides for the registration of gift deeds for immovable property, and lays down the requirements for such registration.
  • Section 126: This section provides for the revocation of a gift, and lays down the conditions under which a gift can be revoked.
  • Section 127: This section provides for the recovery of a gift, and lays down the conditions under which a gift can be recovered.
  • Section 128: This section provides for the liability of the done for debts and obligations associated with the gifted property.

What Is Better, A Will or A Gift Deed?

Whether a will or a gift deed is better depends on the specific circumstances and objectives of the person making the transfer. Both a will and a gift deed have their own advantages and disadvantages, and the choice between them should be made based on the specific needs and requirements of the person making the transfer.

A will is a legal document that specifies how a person’s assets and properties will be distributed after their death. It provides greater control over the distribution of assets and ensures that the person’s wishes are carried out. A will can also be used to appoint guardians for minor children. However, a will only takes effect after the person’s death, and it can be challenged in court by unhappy beneficiaries or other interested parties.

On the other hand, a gift deed is a legal document that transfers ownership of a property from one person to another without any monetary consideration. It is a useful tool for transferring property during the person’s lifetime, and it can help avoid disputes over the transfer of the property. However, a gift deed requires the transfer of possession of the property to the done, which means that the donor cannot continue to use the property or derive any income from it.

Conclusion

In some cases, a combination of a will and a gift deed may be the best approach. For example, a person may use a gift deed to transfer a property to a family member during their lifetime while also specifying in their will how their other assets and properties will be distributed after their death. Thus, it is recommended that anyone considering making a will or a gift deed consult with a qualified lawyer who can provide legal advice and guidance on the best approach based on their specific circumstances and objectives.

Also Read:
List Of Advantages Of Gift Deed Registration That You Must Know

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