How to Transfer Property to Legal Heirs After the Owner's Death?

Understanding Legal Heirs

Legal beneficiaries are individuals who are legitimately qualified to acquire a deceased individual's resources and expect their liabilities. This incorporates both movable and resolute properties. The beneficiaries can be one or more individuals and are normally characterized by the deceased's will, familial connections, or legal announcements. The rights of legitimate beneficiaries are also set out in the succession laws material to the deceased's religious and cultural foundation, for example, the Hindu Succession Act or the Indian Succession Act.

Legal Heirs Under Hindu Law

The Hindu Succession Act, of 1956, gives an extensive system to the inheritance of property among Hindus. The demonstration divides heirs into two principal classes: Class I and Class II heirs.

• Class I Heirs:
  • Sons and daughters (including the children of any predeceased son or daughter)
  • Widow
  • Mother
  • Heirs of predeceased children (such as grandchildren)
  • In the absence of these heirs, property goes to the father.
• Class II Heirs: If there are no Class I heirs, the estate is distributed among Class II heirs, including:
  • Siblings
  • Grandparents
  • Uncles and aunts

Key Features under Hindu Law:

• Equivalent Rights: Girls have similar rights as boys in their father's property.
• Widow's Rights: A widow is qualified for an equal share as that of a son.
• Agnates and Cognates: Without Class I and Class II heirs, the property goes to agnates (male lineage) and afterwards to cognates (female lineage).

Legal Heirs Under Muslim Law

Muslim inheritance laws are derived from the Quran and Hadith and do not recognize the concept of a will as in Hindu or Christian law. Instead, they follow specific shares prescribed for heirs:

• Primary Heirs:
  • Spouse (widow or widower)
  • Children
  • Parents
• Secondary Heirs (if primary heirs are not present):
  • Siblings
  • Grandparents
  • Other relatives

Key Features under Muslim Law:

• Fixed Shares: Specific shares are allocated to heirs, e.g., a wife gets one-eighth if there are children, one-fourth if there are no children.
• Male Preference: Sons generally receive twice the share of daughters.

Understanding the Process of Transferring Property to Legal Heirs After an Owner's Death

Transferring property to legal heirs can vary based on whether the deceased left a will. The process for each scenario is outlined below:

Steps to Transfer Property Without a Will (Intestate Succession):

Intestate succession refers to the legal process of distributing a deceased person's property when they pass away without leaving a valid will. In India, the distribution of assets in such cases is governed by the personal laws applicable to the deceased. Here are the steps involved in transferring property when there is no will:

Step 1: Get a Legal Heir Certificate

All the beneficiaries (class-I heirs, typically spouses and children) must apply for a legal heir certificate. This certificate can be obtained from the tehsildar or revenue officer and is also known as the surviving member certificate.

Step 2: Visit the sub-registrar’s Office

Legal heirs can choose to transfer the property collectively or individually. All legal heirs must be present with their ID and address proof for collective transfer at the sub-registrar’s office. One legal heir, usually the spouse, can collect a registered relinquishment deed from others for individual transfer.

Step 3: Registered Relinquishment Deed or NOC

In the case of an individual transfer, legal heirs should execute a registered relinquishment deed. This involves payment of stamp duty and registration fees, which vary by state. An NOC can also be submitted but does not transfer property rights permanently.

Step 4: Submission of Documents

Submit an application form, the property owner’s death certificate, registered relinquishment deed or NOC, legal heir certificate, ID and address proof, and the property’s title deed to the sub-registrar’s office.

Step 5: Verification and Update

The sub-registrar’s office will review the documents; the time taken depends on their accuracy. Ensure your name is updated as the new property owner in the sub-registrar’s records.

Steps to Transfer Property with a Will (Testate Succession):

In this context, succession is governed by a testament or will. Under Hindu law, an individual has the right to distribute their property as they see fit through a will. After the person's death, the property is transferred according to the instructions in the will. Below are the steps for transferring property through a will:

Step 1: Locate the Will

Recognize the recipients or legitimate beneficiaries as referenced in the will. Decide whether an executor is named in the will.

Step 2: Probate or Letters of Administration (LOA)

The initial step is to decide if a probate of will or LOA is required. Probate is a court-certified duplicate of the will and is applied for by the executor referenced in the will. LOA is required when the will doesn't make reference to an executor or when the deceased has not composed a will. The need for probate or LOA depends on the location of the property.

Step 3: Gathering Required Documents

The lawful successor referenced in the will ought to gather the required documents, including a duplicate of the will, original property papers, the proprietor's demise certificate, and their own ID and address verification (e.g., PAN, Aadhaar, Voter ID, or driver's license).

Step 4: Application Submission

Visit the sub-registrar with every one of the documents referenced previously. Present an application form for the transfer of proprietorship alongside the documents.

Step 5: Verification and Update

The sub-registrar’s office will survey the submitted documents.The time taken for the transfer process relies upon the precision and fulfilment of the documentation.
When fulfilled, the authorities will update the property records with the name of the lawful successor/candidate.

Step 6: Transfer of Property Certificate

Check whether your name is reflected as the property's new proprietor in the sub-registrar's records. You can apply for a property transfer certificate, empowering you to sell the property or use it as security for credit.

Read More About Transfer Of Property Through A Registered Will

Key Documents Required

• Death Certificate: This is the most pivotal record that formally proclaims the demise of the property owner. It should be obtained from the local municipal authority.
• Will or Succession Certificate: If the departed left a will, a duplicate should be given. Without a trace of a will, a succession certificate from the court will be required to lay out legal heirship.
• Property Documents: Original property deed, deal agreement, or some other record demonstrating ownership for the property.
• Legal Heir Certificate: Issued by the local revenue authorities, this certificate records every one of the lawful successors to the deceased.
• Encumbrance Certificate: This document confirms that the property is liberated from any legitimate dues.
• No Objection Certificate (NOC): Obtained from other lawful beneficiaries if the property is to be transferred to a single successor.
• ID Proofs of Legal Heirs: Substantial distinguishing proof records, for example, Aadhaar card, PAN card, visa, and so on, of the lawful beneficiaries.
• Affidavit: An affidavit expressing that there could be no different beneficiaries and no litigation forthcoming connected with the property.

Costs Involved

• Legal Fees: Employing an advocate for handling the transfer can go from INR 10,000 to INR at least 50,000, contingent upon the intricacy of the case.
• Stamp Duty and Registration Fees: These fees change by state and the worth of the property. They can go from 1% to 8% of the property's reasonable worth.
• Court Fees: For getting a succession certificate or probate of the will, court charges might apply, which shift by state.
• Notary Charges: Expenses for authenticating records can be nominal, typically between INR 500 to INR 2,000.
• Miscellaneous Expenses: Including costs for acquiring different certifications, travel costs, and other managerial expenses.

Common Challenges and Solutions:

Here are the common challenges and solutions for transferring property to legal heirs after an owner's death.

• Disputes Among Heirs: Conflicts among lawful beneficiaries can postpone the process. Mediation or legal arbitration can help resolve conflicts amicably.
• Will-Related Disputes: Disputes over the validity or interpretation of a will can delay the transfer process. To address this, seeking a court’s probate order can help establish the will's authenticity and resolve any legal challenges. For further details on common will-related disputes in India, check out our Article.
• Incomplete Documentation: Missing or incorrect documents can halt the process. Solution: Ensure all necessary documents are collected and verified before initiating the transfer.
• Legal Complications: Complexities in property laws can create hurdles. Consulting a legitimate expert who has some expertise in property regulation could assist with exploring these issues.
• Delayed Issuance of Certificates: Regulatory postpones in acquiring certificates. Regular subsequent meet-ups with the concerned authorities and utilizing the web services wherever accessible can facilitate the process.
• Unregistered Will: If the will is not registered, it might be contested. Getting a probate from the court can validate the will.

Conclusion:

Transferring property to legal beneficiaries after the proprietor's passing is a process that requires cautious consideration regarding legal requirements and documentation. Regardless of whether there is a will, following the outlined steps can help legal beneficiaries navigate this often intricate process effectively. Consulting a property lawyer can provide valuable guidance to ensure that property ownership is properly transferred. By taking these steps, legal beneficiaries can protect their rights and make informed decisions regarding their inherited assets.

About The Author:

Adv. Pankti M. Doshi is a distinguished non-litigation and litigation advocate with a reputation for providing expert legal counsel across various sectors. With a career spanning for over 5 years, Pankti has specialized in crafting meticulous legal documents, contracts, and agreements with its registration, will drafting with registration, testamentary cases, family dispute matters, civil matters, Redevelopment work etc that protect clients' interests and ensure compliance with all applicable laws.