The Private Client team at Cyril Amarchand Mangaldas shares their comments and opinions in an article in the following Q&A which was published by the Mint Newspaper on 27th October, 2021 and the online edition of the same can be found here.
My question is regarding my share in a house built by my father. The said house was built in 1990 and registered in the name of my mother and my elder brother (I was a minor then). My father passed away in 2016 and all immovable assets were transferred in my mother’s name. My mother has always maintained that all her assets, movable and immovable, be shared equally between us brothers. She has not made any Will and I do not feel comfortable asking her to make one either. My question is that in the absence of any Will, what is my share in the said house? Since the house is registered jointly in the name of my brother and my mother, she legally owns half of the house. Will my share amount to half of her share, i.e 50% of 50% = 25% or will it be her complete share, i.e 50%?
—Name withheld on request
We assume that you are Hindu by faith. Basis these facts, the title to the immovable property was jointly held by your mother and your brother. In the absence of a validly executed Will by your mother, her estate, which would include her 50% share in the house, would pass to her Class I legal heirs in equal proportion. Accordingly, your mother’s 50% interest in the house would be split in the ratio of 25% each. Ultimately, in such a scenario, your brother would own 75% ownership interest in the house.
While we understand your hesitance to broach the topic (of executing a Will), try approaching this from another standpoint.
In an extreme situation, where you and your brother were to predecease your mother, the asset could pass on to distant relatives from your father’s side of the family.
Executing a Will has several advantages and can greatly help in ensuring the smooth transition of assets to the next generation. It would be helpful to bring a senior attorney on board to help with these conversations.