The passing of a loved one is an emotionally challenging time, and dealing with legal formalities like property transfer can make it even more overwhelming. Property transfer involves adhering to certain legal formalities and must be meticulously cared for in both the presence and absence of a Will. From securing certificates to updating the land records, the entire process can become daunting if not properly unfolded in mind.
This blog shall ease the process and give you a good understanding of the transfer of property after death-whether you are a legal heir, executor, or beneficiary. Knowledge of the whole process will safeguard rightful ownership, ensure a lower chance of disputes arising, and respect the intent of the deceased.
Understanding of Property Transfer
When a person dies, the immovable property has to be legally transferred to the rightful heirs or beneficiaries of the deceased person. The process changes according to whether the deceased left a Will, i.e., testamentary succession, or if he did not leave one, i.e., intestate succession.
In the case of a valid Will, the property will be disposed of per the wishes of the testator, which may require probate of the Will in court. Intestate succession, property shall be disposed of under the law relating to personal succession. In each case, proper documents shall be prepared relating to the transfer of ownership, certificates of title issued, and mutation entered into the municipal records for mutation of ownership records.
How To Get Property Transferred After Death?
Testamentary Succession
If the deceased left a Will, the property is transferred according to the instructions so specified therein. The procedure is as follows:
a. The Will
A valid Will clearly states who inherits what. The executor named in the Will undertakes to carry out the instructions therein.
b. Declaration of Title Suit (if Will is contested)
If a Will is challenged, then the beneficiary would have to bring a declaration of title suit in the civil court to establish their title.
c. Probate
In most Indian states, especially for immovable property, a probate is necessary, as it is the validation of a Will by a competent court, and it establishes the validity of the Will and authorises the executor to distribute the property.
d. Mutation of Property
Once the probate is granted, the executor or beneficiary would have to apply for mutation certificate in the local municipal or revenue records to reflect the new title.
Intestate Succession
When a person dies intestate, the property gets distributed as per the personal laws applicable thereto (Hindu Succession Act, Muslim Personal Law, etc.) and land laws (Transfer of property act 1882).
a. Determination of Legal Heirs
This step is crucial; it involves identifying the righteous legal heirs, including spouse, children, and parents.
b. Legal Heir Certificate
A local municipal authority or district court issues the legal heir certificate, wherein all legal heirs are mentioned.
c. Succession Certificate
It is issued by a civil court and is generally required when the assets involved are movable, such as bank accounts or shares. However, there are instances when immovable property may also require the succession certificate.
d. Division of Property
When there are multiple heirs, an agreement may be signed between the heirs for mutual division. If disputes arise, one must go to court for adjudication.
Procedure for Transfer of Property After Death
1. Obtain a Death Certificate
Secure an official death certificate from the municipal authority where the deceased resided. This document legally confirms the owner’s death and is mandatory for initiating the transfer process.
2. Look for a Will
Check whether the deceased left a registered or unregistered Will. If a valid Will exists, the property will be distributed as per the Will’s instructions. If there is no will, succession will follow intestate succession laws—the Hindu Succession Act, the Muslim Personal Law, or the Indian Succession Act, depending on the religion of the deceased.
3. Apply for Probate (if Will exists)
File a petition in the civil court for probate—legal authentication of the Will. Probate is compulsory in cities like Mumbai, Kolkata, and Chennai for Wills executed within those jurisdictions.
4. Obtain a Legal Heir Certificate
If no will exists, apply for a legal heir certificate from the district revenue office or the Tahsildar to establish the rightful heirs.
5. Apply for Succession Certificate
This is especially needed for transferring movable assets like bank accounts, shares, or insurance claims. Some states may also require it for immovable property.
6. Get No Objection Certificate (NOC) from Other Heirs
If the property is being transferred solely to one legal heir, obtain written NOCs from other legal heirs to avoid future disputes.
7. File a Mutation Application
Submit the mutation application to the local municipal or revenue office along with supporting documents like the death certificate, legal heir certificate, Will (if any), and NOC. A mutation updates the land or property records in the new owner’s name.
8. Ownership Transfer
Once all documents are verified and approved, the property ownership is officially transferred to the rightful heir(s). A new title deed is issued in their name.
Documents Required for the Transfer of Property After Death
- Death Certificate
- Legal Heir Certificate
- Succession Certificate
- Probate (in case of a will)
- No Objection Certificate from other heirs
- Property Title Deed
- Identification Proof of Heirs
- Affidavit (if needed)
- Mutation Application
Important Considerations During the Transfer
- State Laws Differ: Property laws in India do vary from state to state, so local legal guidance is usually required.
- Taxation: There could be stamp duty or registration charges depending on the nature of the transfer.
- Disputes: If the property is under dispute, then this might prolong the whole process by much, with civil litigation perhaps becoming necessary.
- Type of Property: Each type of property, be it agricultural land, residential houses, or leased property—may involve different processes and governing authorities for title transfer.
Common Challenges in Transferring Property Through a Will
- Forgery or Disputes: If the Will has been made under suspicious circumstances, it can be challenged for authenticity.
- Absence of Probate: Many government departments do not accept the Will if it does not have a probate.
- Executor Absence: When the executor has died or is unwilling, the court needs to appoint a substitute executor.
- Improper Execution of the Will: The Will could be declared invalid if it is not signed in the presence of two witnesses or it lacks particularity.
Transfer of Property through Will in India
- First of all, the beneficiary needs to gather all the necessary documents, including the deceased’s death certificate, the original will, and a legal heir certificate.
- The will must be legally probated or validated by the court. This process involves submitting the Will to the court and proving its authenticity.
- After the probate is granted, the mutation must apply for the mutation of the property in the local revenue or municipal records. The executor is the person mentioned in the Will and who is responsible for managing the property distribution according to the instructions.
- The executor manages the transfer of property title to the beneficiaries by updating the property records at the local sub-registrar’s office.
- After verification, the property records are updated to reflect the new ownership in the beneficiary’s name.
Transfer of Property After Death Without a Will in India
- The legal heirs must obtain a legal heir certificate from the district court.
- In certain cases, the succession certification from the court may be required to establish the heir’s rights.
- In case of multiple heirs, the property must be divided among them. This involves a mutual agreement or a court process if there are disputes.
- The heirs must apply for the transfer of property title at the local sub-registrar’s office.
Conclusion
Once a person dies, transferring of property does not just involve the mere passing of paperwork, but the clear legal intention of rightful inheritance. The right legal processes must be followed, whether the property is to be transferred through a Will or intitling circumstance set by law, to shield the owner from disputes in the future or delays therein.
Every patch from certificates procurement, mutation, etc., is important. Seeking a legal expert’s help would go a long way toward making the process easier, especially when it is complicated or disputed. Having an understanding of these steps and acting on them, therefore, would ensure that the property of the deceased is smoothly and legally passed on.
Hemali Patel