Transfer of Property on the basis of Registered or Unregistered Will

Transfer of Property on the basis of Registered or Unregistered Will

Transfer of property means transferring the ownership of the property.  For transfer of the property, one has to establish his claim or has to prove his title. The same can be done through various documents like sale deed, gift deed, Will etc.

Will or no Will

Whenever a person dies, someone has to manage his property and assets. There can be two situations:

1.   The person has died after making a Will

2.   The person has died without any Will (has died intestate)

In the first case, the property gets distributed as per the tenor of the Will.

In the second case, the property gets distributed as per the Law of Succession. The property gets devolved to the legal heirs of the deceased as per personal laws and relevant provisions of statute e.g. the Indian Succession Act, the Hindu Succession Act etc. whichever is applicable.

Registration of Will

As per the Indian Laws, it is mandatory to register the document based on which the immovable property having a value of Rs 100 and above is transferred. If a document which is required to be registered compulsorily has not been registered, the document does not confer any title. It is not admissible in evidence in court.

If the Will is registered, it is better. The registered Will is considered as a genuine one. The testator and the attesting witnesses appear before the Registering Authorities. It helps to ascertain their identities and add to the authenticity of the document.

Process of transferring the property

For transferring the ownership, the relevant papers are submitted to the office of the Sub Registrar.

Documents required are:

  • Will – A Will can be registered or unregistered. If the Will is registered, it is in the safe custody of the Registering Authority. It can also be kept in the safe custody of a banker or a lawyer. In such a case a certified copy of the Will is submitted. If the Will is unregistered, attested copy of the Will is submitted.
  • Probate – Probate can be demanded if it is compulsory or if the Will is not registered. Probate is a certificate from the court certifying that it is the last Will and is genuine. Probate is granted to the executor appointed under a Will. Probate is mandatory in certain States.
  • Succession certificateSuccession certificate is required to access the moveable assets of a deceased person. Even if the Will is there but not registered, the claimant through the Will in some cases, is asked to bring the succession certificate from the court. Succession certificate is generally required for a moveable property like bank account balances, shares, securities etc.

There are certain other documents also which may be required/ demanded by authorities, depending upon the facts of the case.

  • Affidavit from the legal heirs stating no objection to transfer the property to the person named in the Will if all legal heirs are not included in the Will
  • Affidavit of attesting witnesses if the Will is unregistered
  • Affidavit from the beneficiary of the Will to clear all the liabilities related to the property

It is always advisable to draft a valid and proper Will through a lawyer. It is better to get the same registered. It will help the family members later for a smooth transfer of the assets in the name of beneficiaries.

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How to apply for succession certificate in the court

How to apply for succession certificate in the court

A Succession Certificate is a document that is granted by a civil court to the legal heirs of a deceased who dies without leaving a will. It is granted by the court to realize the debts and securities of the deceased. In the case of Muthia vs Ramnatham,[1] , it was held that the privilege of certificate gives to the grantee a right to recover the debt due to the deceased person, and payment to the grantee is a good release of the debt.” It establishes the authenticity of the heirs and gives them the authority to have securities and other assets transferred in their names as well as inherit debts. In the absence of a will, if there is no heir amongst the account owners and a no nomination had been prepared by the holder (s), a succession certificate is the primary certificate through which the heirs can stake a claim to the assets of a deceased relative.

A Succession certificate is issued by the government, usually to establish a relationship for claims relating to Insurance, pension, retirement benefits or service benefits of central and state government departments, Government undertakings etc. In legal succession cases sine qua non to obtain a succession certificate is to establish the relationship.

In the matter of Paramananda Chary vs Veerappan[2] , it was held that ”The grant of succession certificate is conclusive against the debtor. Also if another person turns out to be the heir of the deceased, it does not follow that the certificate is invalid”. All required documents are to be submit while lodging the application.

Procedure to apply for Succession Certificate to The District Judge under section 372 of the Act;

  • the petitioner must sign and verify the petition;
  • the residences of the relatives and family of the deceased must be mentioned;
  • in the case of The Hindu Succession Act (Act XXX OF 1956), the names of the heirs must be mentioned in the petition;
  • the right of the petitioner should be mentioned;
  • either Ordinary house of the deceased, at the time of death, or the estate of the deceased should be inside the limits of the Jurisdiction of the Court concerned;
  • the debts and securities as to which the succession certificate is applied for should be mentioned; vii) the absence of any impediment u/sec. 370(1) of the Act or any other terms of the Act or any other laws to the privilege of succession certificate or to the legality of it in case of it was granted, must be mentioned

 

[1] 1918 MWN 242

[2] AIR 1928 Madras 213: 82 IC 604,

Nomination is not a WILL

Nomination-is-not-a-WILL

If you die intestate (without leaving a WILL document), The Natural law of succession will prevail

The Court in present case once again had to decide between Morality and Law and settled that law prevails. The matter before the court was in relation to Relinquishment of Succession Right when Heirs have separated themselves from Deceased for a long time. The Court had to decide whether Absence of the Will still attracts Hindu Succession Act when Heirs had distanced themselves from the life of Deceased for more than 35 years. The situation became more complicated since deceased considered someone else as her nominee.

In the above-mentioned case, the facts are as follows:

  • A woman was living separately from her Husband and Daughter from past 35 Years and died Intestate.
  • From 35 years, the deceased was living with her sister.
  • Deceased was a Central Government Employee and has selected her sister as her nominee.
  • A succession Certificate issued in favor of Husband and Daughter of Deceased.
  • Sister of Deceased appealed against the above order on the ground that Nomination marked her as the owner.
  • Court relying on settled position of Nomination not amounting to Will stated that in absence of Will irrespective of relationship between deceased and heirs, the property still delves into legal heirs as per Hindu Succession Act in case of Intestate Deaths.

The court in this matter settled the following points

  • Nomination does not itself amounts to a Will or marks nominee as an owner.
  • Irrespective of the relation between Parties, provisions of Hindu Succession Act prevails in absence of Will.

Conclusion

The court in its opinion stated that the prevalence of law since distance does not amounts to Breakage of relationship and can even be there because of various other reasons as Employment. Moreover Nomination in Official Records sometime is done as a token of affection and love rather than with the purpose of making someone as a legal heir.

Read Full Judgement

Difference between Succession Certificate and Letter of Administration

Succession Certificate and Letter of Administration

The right paper work goes a long way in getting your money to those you love when you are no more to help them out. When you approach a financial institution, bank, Mutual Fund AMC, Demat account, PPF etc. to inherit, they may ask for documents like Succession Certificate or Letter of Administration or Probated copy of the Will to ascertain that you are the legal heir. This may even happen when you have a valid will.

Succession Certificate

In the absence of a will, if there is no survivor amongst the account holders and a no nomination had been done by the holder(s) earlier, a Succession Certificate is to be the primary document through which the heirs can stake a claim to the assets of a deceased relative.  A succession certificate, under the Indian Succession Act, is a document that gives authority to the person who obtains it, to represent the deceased for the purpose of collecting debts and securities due to him or payable in his name. 

  • It establishes the authenticity of the heirs and give them the authority to inherit debts, securities and other assets that the deceased may have left behind.
  • The beneficiary has to approach the district or the high court within whose jurisdiction, i.e. legal territory, the assets fall (where the properties of your deceased relative are situated) and file a petition for a succession certificate.
  • The court, after examining the petition, issues a notice to all those concerned. It also issues a notice in a newspaper and specifies a time frame (usually one-and-a-half months) within which anyone who has objections may raise them. If no one contests the notice and the court is satisfied, it passes an order to issue a succession certificate to the petitioner.
  • Once you have the certificate, you are authenticated to distribute the assets to the legal heirs as per the succession laws.
  •  A Succession Certificate is not granted in cases where obtaining a Probate of Letter of Administration is necessary such as when there is a valid will.

Letter of Administration

Letter of Administration is issued by a competent authority (court) and appoints the Administrator to dispose of the property of a person. It is required when:

  • Testator has failed to appoint an executor under a Will OR
  • Where the executor appointed under a Will refuses to act  OR
  • Where executor has died before or after proving the Will but before administration of the estate.

A Letter of Administration can be granted after 14 clear days from the date of death of an intestate.

For obtaining a letter of administration the beneficiary has to apply to the court. The court on receiving satisfactory proof of valid execution of the will issues letter of administration to the beneficiary. The application for letter of administration has to contain the following details:

  • The time of the testator’s death
  • That the writing annexed in his last will and testament
  • That it was duly executed
  • The amount of assets which are likely to come to the petitioner’s hands, and
  • The petitioner is the executor named in the will

A Letter of Administration may be granted to one or several people who may apply to the Court. If no one applies, it may be granted to a creditor of the deceased. A Letter of Administration cannot be granted to a minor or a person of unsound mind.

Why you need a Succession Certificate

Succession Certificate Document

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