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.

How to obtain probate of a Will

How to obtain probate of a Will

A Will is an important legal document which must be drafted with the help of an Advocate. Probate legalizes only a valid Will

People approach us with many queries relating to the probate of a Will. Here we discuss some of those queries.   

What is a Will?

A Will is a legal document. It contains the desire of a person for the distribution of his assets after his death.

Read More: Making a Will

What is probate?

Probate is proof of the Will, i.e. evidence of the fact that a Will exists and is authentic. As defined in the Indian Succession Act, 1925, probate is the copy of the Will issued to the executor with a seal of court and permission to handle the estate of the testator. 

Probate is an authority given by the court to the executor named in the Will.  It is required to execute the Will as per the wish of the deceased. There is a process to obtain a legal document called “Grant of probate” from the court.

The executor needs this authority for administering the Will. It is used for managing the property of the deceased as per the tenor of the Will.

Is probate of a Will necessary?

No, it is not necessary to obtain probate of a Will in every case. However, it is required when the Will is made by a Hindu, Buddhist, Jain or Sikh and

  • If the Will is made in any of the areas subject to the jurisdiction of Governor of Bengal and within the local civil jurisdiction of High Courts of Madras and Bombay or
  • If the Will is made outside but related to immovable property located in said areas.

No probate is necessary in case of Wills made by Mohammedans.

Read More: Where there’s a Will, there will be more to learn!

As per section 213 of the Indian Succession Act, an executor or legatee (beneficiary) can establish its right under a Will in any Court only if the Will is probated. A probated Will is required only in abovementioned two cases.

Process of Probate:

The executor applies for the grant of probate. The application is filed in the court having jurisdiction over the area where the property is located. The probate may be granted by a higher court or lower court depending upon the value of the immovable assets.  

Read: More: What happens if one dies without making a Will?

Along with the application, the applicant has to make submissions with documents in support of the same:

  • Fact of death of the testator
  • Time of death
  • This is the last Will, and it was duly executed (a statement to the effect that the testator signed the Will in the presence of two witnesses)
  • Share of executor (who is applying for probate)

Probate is issued on a stamp paper. The applicant submits the stamp paper. The value of the stamp paper is equivalent to the requisite court fee.

Once the application is submitted –

  • notice is issued to the next kin of the deceased
  • a public notice is also published for the general public

The notice is issued to file objections to the grant of probate in favour of the executor named in the Will.

If no objections are filed, probate is issued. If objections are filed, application is contested. The parties lead evidence, and the case is decided accordingly.

Read More: How to register a Will?

Time limit:

There is no time limit to file for probate. But unnecessary delay needs to be explained.

The process of obtaining probate requires a valid Will and possession of certain other documents to justify the claim. It is advisable to take timely legal advice for the same.

THINGS TO REMEMBER WHILE MAKING A WILL

things to remember while making a will

It’s a myth that making a will is the right of only the rich. Any adult who wants to ensure a fair & just distribution of his assets can write a will. The assets could include property, gold, financial investments, art and artefacts, even hard cash lying at home.

Every individual should write a will so that his/her heirs do not face difficulties in accessing what is rightfully theirs.

Some guidelines for making the Will

A Will need not always be on a stamp paper or be registered. It can be made even on a plain paper, and it can still be as legally valid as one made under a lawyer or supervision.

However, it is vital that the Will must identify the person preparing it as the ‘testator’. A testator is a person who is making the will.

While making a will, one must list out his/her assets and lay a blueprint of how to allocate the assets to the heirs.

It doesn’t matter if the will is typed or handwritten, all that matters is that it be signed by the testator, attested by two witnesses and be legible. It’s crucial to choose the witnesses carefully – they must be reliable. They should also be preferably younger than the testator to ensure that they are around when the will is being executed. Then it becomes an entirely valid and legitimate document for every practical purpose.

Hence making a will can be a do-it-yourself exercise for most people. However, if the assets and ownership of the property is a little complex, then one must take legal and professional help to draft the will.

Legal and professional help would ensure that there is no ambiguity and loopholes in the will that may lead to misunderstandings or disputes in future. Also, the distribution will be as per the law. It is recommended that in case the testator is old and frail, then he/she should avoid making the will him/herself and get it typed to prevent disputes among the beneficiaries.

It is important to know here that a will cannot override the natural succession of inherited/ancestral property/wealth. This means a testator cannot remove a natural heir from the inherited property.

How do you ensure that Will is free of loopholes?

To assure that your will is impeccable, follow the following instructions:

  • Personal Details to be given while making a will

The testator’s name, personal details, fathers name and residential address should be explicitly stated. The date is crucial, mainly if the latest Will succeeds those made earlier and it must be mentioned in figures to rule out any fudging.

  • Verify free will

Verifying free will helps to declare upfront that the testator was not under any compulsion or influence while making the will. The witnesses must also attest this at the end of the will.

  • Attach executor’s details with the will

The executor of the will is the backbone of the entire process. Mention his/her name, your relationship with that person and the address to avoid misrepresentation.

  • State complete Details of All the Assets

Mention complete information about the immovable property mentioned in the Will. State the entire bank accounts details, and attach the relevant deposits, lockers and insurance policies papers with the will.

  • Identify the beneficiaries clearly

The name and address of the beneficiaries should be mentioned clearly.

  • Give details of Mutual Funds Collectibles

While willing mutual fund investments, give the folio number though individual scheme names need not be named. Also, the collectables and artefacts being willed should be clearly defined.

  • Cover Other Assets

Include any other asset you may have left out inadvertently while enumerating your net wealth.

Under what circumstances can a testator review his/her Will?

You should consider changing your will if:-

  • You or any of the beneficiary mentioned in the will changes his or her name.
  • there is a change in circumstances, and you want to eliminate a beneficiary or add a new one in the will.
  • you sell any of the property mentioned in the will or acquire new ones.
  • the executor of the will dies or is declared unfit due to old age or ill health.
  • a beneficiary mentioned in the will dies.

Reasons to have a Will for Property in India

Reasons to have a Will for Property in India

A will can be defined as a legal document that divides an individual’s intestate amongst his heirs.  In order to carry out persons wish after his death, a will becomes the primary document of execution. There are many reasons as to why an individual should draft their wills and get them registered –

Custody of Children – In case of minor’s, their custody is something that may be challenged after a person’s death. In case both the parents have passed away, the will act as a directive to kith and kin left behind.

Distribution of Intestate – A will is an individual’s mouthpiece after their passing away, this mouthpiece helps with the distribution of property and its execution in accordance with individuals wishes. It helps in avoiding familial fights and arguments.

Avoids the Process of Probate – The process of probate is quite simply the administration of your assets by the court. With a will, it becomes easier and quicker as opposed to without the existence of a will.

Selection of Estate Organizer/Manager – A will helps in appointing an executor who is trustworthy and is responsible in acts of management and distribution of your estate. This appointment is made in the will itself.

Estate Taxes – Estate taxes stand reduced when the property is distributed amongst the members of the family in accordance with the will and hence it reduces financial burden and conflict.

Disinheritance – A will allows you to exclude those who were in normal circumstances going to inherit your property. Will’s can help chart a plan as to how much estate goes into who’s hands and thus an individual can save ones assets from getting into the control of those whom he may not want to make a beneficiary.

Gifts/Donations – One can give away their estate to charity or pass it on as a gift. There have often been situations where we’ve seen huge estates being donated for goodwill.

Legal Encumbrances – Other legal problems such as your estate going to undeserving parties also occur in the absence of a will.  There have been many instances where people have incorrectly benefitted from the passing away of individuals. Wills, cancel out that possibility.

Wills can be changed with change in circumstances.

How to register a Will?

How to register a Will in India

A will is a document that allows for the division and distribution of an individual’s intestate amongst his heirs and others in accordance with his wishes after his demise.

The registration of a will is not compulsory; however, a greater legitimacy is attached to it once registered.

The registration of a will is considered to be more flexible as opposed to the registration of other legal documents.

The registration of wills is not time-bound, usually because they are more sensitive and delicate. An individual making the will or a testator may not always want to disclose the assets that he/she may possess. Thus, there exists no specified time period of registration.

The will has to be registered before the Registrar or Sub-Registrar under whose jurisdiction the matter lies. This should be done in the district court.

The registration is usually done in the offices of the Registrar and the Sub-Registrar, but for exceptional cases, under Section 31 of the Registration Act, the officer may in case of a special cause go to an individual’s residence. This is usually in cases of ill health or impending death.

In usual cases, a stamp duty is paid; the testator is accompanied by the witnesses to the Registrar’s office. The will is executed and the registered will can be given to a lawyer or banker so as to keep in safe custody. The registrar too has an authority to hold the will and to deposit the wills. This can be done by the will being put in a sealed cover/envelope and can be done by the testator or a person duly assigned by him.

It is a general misconception that the registered will has a supremacy over an unregistered regardless of the fact that the unregistered will is on a later date.

But it has been established by the Apex Court that regardless of the registration or non-registration of the will, the one of the later date would prevail.

There are many advantages to registering a will;

  • it cannot be tampered, destroyed or stolen;
  • it cannot be examined or even accessed without the written consent of the testator until his death