Once a property owner dies, the legal heirs have to transfer the property of the deceased in their names. The process of doing this will depend on the type of transfer. If the deceased has made a will, the process of transferring the title of the property becomes much smoother. But if there is no will and there are multiple heirs, it can complicate the process.
Here is a look at the process an individual needs to follow to transfer property after the death of the owner in different cases.
Property transfer if there is a will
A will normally clearly mentions the beneficiaries or legal heirs who will inherit the deceased's property and other assets. Neha Gupta, Principal Associate of law firm Athena Legal, says, "The first step in transferring a property to a legal heir's name is to either get the will probated or get letters of administration (LOA)."
Probate is a court (competent court) certified copy of the will. The executor of the will applies for the probate of the will. It is done to determine the validity and authenticity of a will in the court.
If the will does not mention the executor or if probate is not mandatory, then beneficiaries of the will be required to apply for LOA. The LOA is also likely to be required to apply in case an individual dies intestate (i.e., without having written a will). Whether a probate or a LOA is required will depend on where the property is located.
Once this process is done, the beneficiary will have to visit the office of the sub-registrar concerned with the relevant documents to get the property transferred in the name of the legal heir. Gupta says, "A legal heir (as per the will) is required to submit an application form for transfer of ownership, copy of will, original property papers, death certificate of the property owner, ID and address proof of the legal heir and deceased property owner."
The ID and address proof can be PAN, Aadhaar, Voter ID card or driving licence, among others. Application forms are available at the sub-registrar's office.
The office of the sub-registrar will check the documents. The time taken in the transfer process depends on the correctness of the documentation.
Gupta says once the sub-registrar is satisfied with the documents, the authorities will update the property records with the name of the legal heir/applicant concerned. "At the end of the process, a legal heir should ensure that his/her name is reflected as the new owner of the property in the sub-registrar records. Further, the new owner(s) can apply for the transfer of the property certificate in their name. The document will help them to sell the property or take loans from a bank against it, she adds.
Property transfer if there is no will
If an individual has died without writing a will, then the assets of the individual will be divided among the class-I heirs according to the succession laws applicable to the deceased. Typically, class-I heirs are spouses and children. In case of the Hindu Succession Act, 1956, the mother of a deceased Hindu man will also be a class-I heir if there is no will.
Gupta says, "In the absence of a will, all the beneficiaries would be required to apply for a legal heir certificate. The application for this can be obtained from the tehsildar or the revenue officer." This legal heir certificate is also known as the surviving member certificate.
After getting a legal heir certificate, the heirs will be required to visit the sub-registrar's office. All the class-I legal heirs have equal rights on the property. Hence, either the property can be transferred to the name of all the legal heirs or one of the heirs. Gupta says, "In case of the former, all the legal heirs will be required to provide their ID and address proof and be physically present in the sub-registrar office for the transfer process to take place. In case of the latter, one of the legal heirs (typically spouse) can collect the registered relinquishment deed from other legal heirs and visit the sub-registrar's office."
In a registered relinquishment deed, legal heirs relinquish their share of the property and other assets in favor of another legal heir(s). Gupta says, "Making a registered relinquishment deed involves payment of stamp duty and registration fees. The charges vary from state to state."
A legal heir can also submit a no-objection certificate (NOC). An NOC is issued to a co-owner or any third party declaring that the person concerned has no objection to the property being transferred to another person. But it does not take away the right of the legal heir to the property. A relinquishment deed is required for a legal heir to permanently transfer property rights to another legal heir. It is a deed executed on a stamp paper and signed by two witnesses.
Once the legal heir gets relinquishment deeds or NOC from other legal heirs, he/she can approach the sub-registrar office for transfer of property into their name for a nominal fee. A legal heir will have to submit the following documents:
a) Application form
b) Death certificate of property owner
c) Registered relinquishment deed or no-objection certificate from other legal heirs
d) Legal heir certificate or surviving member certificate
e) ID and address proof of the legal legal heir in whose name the property is requested to be transferred
f) Title deed of the property
The sub-registrar's office can also demand indemnity bond from other legal heirs. Here also, the time taken to transfer the property to the legal heir's name depends on the correctness of the documents. The legal heir should ensure that his/her name is reflected as owner in the sub-registrar's records after the property transfer is completed.
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