Transfer Of Property Through A Registered Will

Law
26-Apr-2023
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The process of transferring property is a critical legal matter that involves the transfer of legal ownership of assets from one person to another. A will is one of the methods used to transfer property, and it is a legal document that outlines a person's preferences on how their assets will be distributed after their passing. The will can either be registered or unregistered, with a registered will it is considered to be a more secure option.

A registered will is a legal document that has been recorded with the relevant government authorities and provides an extra layer of security compared to an unregistered will. The registration process entails presenting the will to a sub-registrar who will verify the document and ensure that it meets all legal requirements. After registration, the will is kept on file with the sub-registrar's office and can be easily retrieved if required.

Transfer of property based on registration will offer reassurance to both the testator and their beneficiaries. It guarantees that the testator's desires are recorded in an official document and can be enforced by law. Moreover, it can prevent disputes between beneficiaries and ensure a seamless transfer of property.

Legal Provisions Involved

The Indian Succession Act, of 1925, governs the transfer of property through a registered will in India. The act sets out the legal provisions for making a will, registering it, and distributing the property among the beneficiaries specified in the will. The act also lays down the rules for probate and administration of the estate of the deceased. It is important to comply with the provisions of the Indian Succession Act, of 1925, when transferring property through a registered will to ensure that the transfer is legal and enforceable.

These provisions are put in place to ensure that the transfer of property is carried out lawfully and transparently. Let's take a closer look at some of the legal provisions involved when transferring property through a registered will.

  • Execution of the Will: To transfer any immovable or movable property through a registered will, the will must be executed by the legal provisions. The person making the will, known as the testator, must sign the document in the presence of two witnesses. The witnesses must also sign the will in the presence of the testator. The witnesses should not be beneficiaries under the will or their spouses.
  • Registration of the Will: To make the will legally enforceable, it must be registered with the relevant government authorities. The registration process involves presenting the will to a sub-registrar, who will verify the document and ensure that it meets all legal requirements. Once registered, the will is kept on file with the sub registrar's office, and a copy is provided to the testator.
  • Beneficiaries under the Will: The registered will specify who the beneficiaries of the property are which may include family members, friends, or charitable organizations. The testator can allocate the property as they see fit, subject to certain legal restrictions. For instance, if the testator has minor children, the property must be transferred to a guardian or trustee until the children reach adulthood.
  • Probate: In some cases, the will may require probate. It is a legal process that verifies the validity of the will and ensures that the wishes of the testator are carried out. The probate court may also appoint an executor to oversee the transfer of the property to the beneficiaries.
  • Stamp Duty: Stamp duty is a tax that is levied on legal documents, including registered wills. The amount of stamp duty varies depending on the value of the property being transferred and the state in which the transfer is taking place. Indian Stamp Act and state-specific stamp duty acts usually entail the stamp duty amount that is required to be paid on the registered will while transferring the property. 

Steps Involved in Transferring Property through Registered Will 

There are 8 steps involved to transfer the property based on the registered will. The following are the steps: 

  • Obtaining a copy of the registered will: The first step is to obtain a certified copy of the registered will from the sub-registrar's office where the will is registered.
  • Applying for probate, if necessary: If the will requires probate, an application must be filed with the relevant probate court. The application should include a copy of the registered will, the death certificate of the testator, and other relevant documents.
  • Valuation of the property: The property that is being transferred must be valued to determine the stamp duty and registration fees applicable to the transfer.
  • Payment of stamp duty and registration fees: Once the valuation is completed, stamp duty and registration fees must be paid to the government. The amount payable will vary depending on the value of the property being transferred and the state in which the transfer is taking place.
  • Preparation of transfer deed: A transfer deed must be prepared by a lawyer, which should include details such as the description of the property, the names of the beneficiaries, and the consideration paid for the transfer.
  • The signing of the transfer deed: The transfer deed must be signed by the executor of the will and the beneficiaries.
  • Registration of the transfer deed: The transfer deed must be registered with the sub registrar's office where the property is located. The registration process involves presenting the transfer deed, paying the applicable fees, and providing other relevant documents.
  • Handing over possession: Once the transfer deed is registered, the executor must hand over the possession of the property to the beneficiaries as per the terms of the registered will.

Documents Required

The documents required for transferring property through a registered will include:

  • Certified copy of the registered will: A certified copy of the registered will is required to initiate the transfer process. This document contains the instructions of the testator regarding the transfer of the property to the beneficiaries.
  • Death certificate of the testator: A death certificate of the testator is required to establish the fact that the testator has passed away.
  • Valuation report: A valuation report is required to determine the fair market value of the property being transferred. The stamp duty and registration fees applicable for the transfer are calculated based on this value.
  • No-objection certificate (NOC): A NOC may be required from the local authorities if the property is located in a specific area or if it has any restrictions or encumbrances.
  • Identity proof: The executor of the will and the beneficiaries must provide identity proof such as an Aadhaar card, passport, or voter ID card.
  • Transfer deed: The transfer deed is a legal document that transfers the ownership of the property from the testator to the beneficiaries. It must be signed by the executor of the will and the beneficiaries.
  • Power of attorney: A power of attorney may be required if the executor of the will is unable to attend the registration process in person. The power of attorney authorizes a representative to act on behalf of the executor during the registration process.
  • Affidavits: Affidavits may be required from the executor of the will and all the beneficiaries involved, declaring that they have no objection to the transfer of the property.

Author Bio: Adv. Manan Mehra has a distinguished practice based in Delhi in commercial and civil law, and he is the go-to choice for persons involved in consumer disputes. Although he takes on a wide spectrum of cases in all legal for across the country, keeping clients first and ensuring speedy resolution has earned him a distinct reputation in complex matrimonial and property-related cases as he has routinely secured favorable outcomes for his clients.