How to Transfer Property After Death

The legal heirs of a deceased property owner are required to transfer the deceased’s assets into their names. The type of transfer will determine how this is done. The procedure of transferring the property’s title is considerably easier if the deceased left a will. However, if there are several heirs and no will, it can

How To Get Property Transferred After Death?

After your parents pass away, you will need to follow the procedures set down by various religious organizations’ legislation in order to have the property transferred into your name. For example: 

       •  Hindu Succession Act 1956
      •  Indian Succession Act 1925
      •  Muslim Personal Law (Shariat) Application Act, 1937

a) Hindu Succession Act 1956

In order to change, codify, and secularize the laws pertaining to intestate or unwilled succession among Hindus, Buddhists, Jains, and Sikhs, the Indian Parliament passed the Hindu Succession Act, 1956. The Act establishes a unified and all-inclusive system of succession and inheritance. The Act eliminates the limited estate of Hindu women. Any property that a Hindu woman has is hers to keep as absolute property, and she has complete authority to manage and dispose of it however she pleases. The Hindu Succession (Amendment) Act, 2005, altered several provisions of this Act in December 2004.

According to the Hindu Succession Act of 1956, the property’s primary rights go to class I heirs, including:

       •  Widow
      •  Children (both sons and daughters)
      •  Mother
      •  Grandchildren

Class II heirs, who include the following, shall inherit the property if the class I heirs are unavailable:

       •  Father
      •  Brother
      •  Sister
      •  Father’s mother
      •  Widow of a predeceased son
      •  Son’s daughter
      •  Son’s son’s daughter
      •  Daughter’s son
      •  Daughter’s daughter’s son

b) Indian Succession Act 1925

There are two methods for distributing property under the Indian Succession Act of 1925. If there is a will, its terms govern how the property is divided in testamentary succession. If there is no will, Class I heirs—the mother, father, and children—inherit first in intestate succession, followed by Class II heirs—the father and siblings—and then agnates and cognates. 

c) Muslim Personal Law (Shariat) Application Act, 1937

There are particular rules regarding inheritance in Muslim personal law. Certain family members, referred to as “sharers,” such as parents, children, and spouses, are granted shares in the fixed estate. For example, a son usually gets twice as much as a daughter.

Any estate left over after allocating these fixed portions is given to “residuaries,” who are mostly male family members. Notably, only one-third of a Muslim’s fortune may be bequeathed in a bequest; the other two-thirds must follow certain regulations. For instance, the wife would receive 1/8 of the estate, with portions determined appropriately, if a man died leaving a wife, two boys, and a daughter. 

Types of Property Transfer

1) Transfer through a will

A will is a legal document that outlines a person’s wishes for the distribution of their assets and property after death. It is the most popular and straightforward method of transferring assets after death. The executor designated in the will is in charge of making sure the directives are followed.

2) Transfer without a will

The laws of intestate succession govern the transfer of property in the event that the deceased left no will. In India, this usually entails the legal heirs (spouse, kids, etc.), who must go through the legal system to claim the property.

3) Transfer through probate

Probate is typically involved in the property transfer procedure when the deceased left a will. The legal process of confirming the will’s validity and authenticity is known as probate.

4) Transfer through a trust

Another way to transfer property after death is through a trust, which is frequently used to get around the hassles of probate. Property will transfer to the beneficiaries of a living trust without the requirement for probate.

5) Transfer on death (TOD) deeds

Through a TOD deed, certain possessions may be automatically transferred to beneficiaries upon death. This avoids probate and is more prevalent for some asset classes, such as real estate. 

Transfer of Property through Will in India

The person or legal heirs who will inherit the deceased’s property and other assets are typically named explicitly in a will. “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),” states Neha Gupta, Principal Associate of the law company Athena Legal.

A certified copy of the will from a competent court is known as probate. The executor submits an application for the will’s probate. It is carried out in order to ascertain a will’s legitimacy and authenticity in court.

Heirs of the will must apply for LOA if the executor is not named in the will or if probate is not required. In the event that someone passes away intestate—that is, without leaving a will—the LOA is probably going to need to be used. The location of the property will determine whether a LOA or a probate is necessary.

After doing this process, the beneficiary needs to reach the office of the concerned sub-registrar bearing the document that is required to get the ownership transferred on registration. Gupta said, “The legal heir, as per the will, should apply for transfer of ownership, original or certified copy of the will, original property documents, death certificate of the owner of the property, proof of ID and address of the claimant and deceased.” 

Among other things, a driver’s license, voter ID card, Aadhaar, or PAN can serve as confirmation of identity and residency. You can get application forms at the sub-registrar’s office.

The documents will be examined by the sub-registrar’s office. The accuracy of the documentation determines how long the transfer process takes.

Transfer of Property after death without Will in India

In the event that a person passes away without leaving a will, their assets will be distributed among their class-I heirs in accordance with the applicable succession rules. Class-I heirs are usually children and spouses.

If there is no will, the mother of a deceased Hindu male will also be a class-I heir under the Hindu Succession Act of 1956.

The heirs must go to the sub-registrar’s office after receiving a lawful heir certificate. Every legal heir of class I has an equal claim to the property. Therefore, any one of the heirs or all of the legal heirs may receive the property.

A no-objection certificate (NOC) may also be submitted by a lawful heir. A NOC is given to a co-owner or other third party stating that they have no issues with the property being transferred to another individual. However, it does not negate the legitimate heir’s claim to the property. To permanently transfer property rights to another legal heir, a legal heir must execute a relinquishment deed. It is a document that has been signed by two witnesses and executed on stamp paper.

For a little charge, the legal heir can contact the sub-registrar office to have property transferred into their name after obtaining relinquishment deeds or a NOC from other legal heirs. The following paperwork must be submitted by a legitimate heir:

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 heir in whose name the property is requested to be transferred

f) Title deed of the property

Other legal heirs may also be required to provide an indemnity bond by the sub-registrar’s office. The accuracy of the paperwork also affects how long it takes to transfer the property to the rightful successor. Following the completion of the property transfer, the legal heir should make sure that his or her name appears as the owner in the sub-registrar’s records.

How to transfer property through will in India from Father to Son After Death

To prevent future legal issues, it is essential to comprehend the subtleties of transferring property to a son following the father’s death. Whether or whether the deceased father left a will, which specifies the procedures to be followed, is the main determinant of the process. 

In order to ensure conformity with Indian succession laws, this article offers a thorough summary of the legal procedures and paperwork needed for the transfer of property to a son following the death of the father.

1. Testamentary Succession

The transfer of property in accordance with the conditions outlined in a legitimate will is known as testamentary succession. The following procedures must be followed in order to transfer property to the son when the dead father left a will:

• The Will

A will is a legal document in which the testator, or deceased father, outlines the distribution of his assets upon his passing. Along with thorough details of the assets to be inherited, it must contain the testator’s full name, address, and beneficiary names. The testator must sign the will in front of a minimum of two witnesses who also sign the document.

• Declaration of Title Suit

If there are disagreements or questions about the will’s legitimacy, a title action can be required. The goal of this lawsuit is to have the court rule that the beneficiary is the legitimate owner of the property and that the will is genuine. 

To support their claim, the plaintiff—typically the designated beneficiary—must present supporting documentation, including the will itself, witness statements, and any other pertinent records. The court may declare the title confirmed if it is satisfied with the evidence that has been given.

• Probate (If Required)

Obtaining probate is required in several places, such as Kolkata, Chennai, and Mumbai. Furthermore, probate must be carried out in the jurisdiction where the will is being administered if the property is situated in a separate city. A petition for probate must be submitted by the executor specified in the will. After that, the court will confirm that the will is legitimate and grant probate if it is.

• Mutation of Property

The official procedure of amending the property records to reflect the ownership change is known as a mutation. To accomplish this, submit an application and the required paperwork to the local municipality.

• Documents Required

• Drafted Will
• Death Certificate
• Identity Proofs of all parties involved
• Witnesses’ Identity Proofs
• Executor’s Identity Proof
• Property Documents
• Legal Heir Certificate (if applicable)
• Succession Certificate (if applicable)
• Any other relevant documents

2. Intestate Succession

When a deceased person dies without leaving a valid will, this is known as intestate succession. The laws of inheritance that apply to their community or personal laws then control how their possessions are distributed. To guarantee the proper transfer of property to the legitimate heirs, the procedure consists of multiple procedures.

• Identifying Legal Heirs

The applicable laws of intestate succession are used to determine the legal heirs in cases where a person passes away intestate. For example, the spouse, children (including boys and daughters), and mother are the primary legal heirs (Class I heirs) under the Hindu Succession Act, 1956. The father, siblings, and other family members are considered Class II heirs, and they receive the property if there are no Class I heirs.

• Legal Heir Certificate or Succession Certificate

Legal heirs may need to get a succession certificate or legal heir certificate in order to prove their claim to the deceased’s assets:

• Legal Heir Certificate: This document, which is issued by the district’s tahsildar, enumerates each deceased person’s legal heirs along with their link to him. For lesser claims, it is typically necessary.
• Succession certificate: A civil court will issue a succession certificate, which is required for more significant claims such property transfers. It proves the heirs’ legitimacy and their right to inherit the deceased’s property.
• Division of Property

According to the rules of intestate succession, the deceased father’s property is distributed among his legal heirs following the acquisition of the succession or legal heir certificate. A definite hierarchy and distribution system are provided by the Hindu Succession Act of 1956:

• Class I Heirs: The mother, spouse, and children who the deceased leaves behind all receive an equal share of the estate.
• Class II Heirs: In the event that no Class I heirs survive, the father, siblings, and other family members are given a share of the property.
• Additional Hierarchy: The property passes to agnates or cognates when neither Class I nor Class II heirs survive.
• Mutation of Property

It is crucial to update the property records with the local municipal authorities following the partition of property. This procedure, called mutation, entails formally acknowledging the change in ownership by filing an application and the necessary paperwork.

Documents Required For Transfer Of Property After Death

1) Obtain A Legal Heir Certificate

The relationship between the deceased and their heirs is established by a legal heir certificate. Applicants must apply to the Tehsildar Office or District Court for it, providing information about the heirs and deceased.

It is also necessary to supply supporting documentation, such as identification documents and the death certificate. The certificate, which is necessary to claim the deceased’s assets, is issued upon verification and includes a list of all legal heirs and their ties. 

2) Applying for a Succession Certificate

After a person passes away, assets such as debts, real estate, or securities cannot be transferred without a succession certificate. In the civil court where the deceased resided, heirs must submit a petition. Information on the departed, their heirs, and the assets at issue should all be included in this petition.

After that, the court will invite any objections to issuing the certificate by publishing a notice in the local newspaper. If no objections are raised within a certain amount of time, the court will hold a hearing. During this process, heirs might have to provide more documentation or proof.

The court issues the succession certificate if it is satisfied with the evidence. This document facilitates the transfer of ownership by granting the heirs the right to claim the deceased’s movable goods. 

3) Execution of Partition Deed

When a property needs to be divided among several heirs, a partition deed is executed. The property split and each heir’s share are specified in this deed. To prevent future problems, all legal heirs must sign the deed and accept its provisions.

The division deed must then be registered at the local sub-registrar’s office. In addition to a registration fee, stamp duty based on the property’s worth must be paid for this registration. The partition deed acquires legal validity upon registration, guaranteeing the division’s formal recognition. 

4) Mutation of Property Records

After a transfer, mutation is the process of altering property records to reflect the new ownership. The local land revenue office or municipal office is where heirs must submit an application for mutation. Documents such as the partition deed, death certificate, legal heir certificate, and succession certificate must be included with this application.

The authorities will authorize the mutation following a review of the provided paperwork. The names of the new owners are listed in the property records after approval. To guarantee that the property is formally passed to the heirs, this step is essential. 

Time limit to transfer property after death    

Although there isn’t a set amount of time after an owner’s death to transfer property, it is recommended to do it as soon as possible to avoid future problems. 

Common Challenges of Transferring Property from Father to Son After Death

Several legal issues may arise when property is transferred to a son following the father’s death, including:

• Disputes Among Heirs

Family members frequently argue in court over who is the legitimate heir or whether a will is legal. The transfer procedure may be considerably delayed by these disputes. These disputes frequently occur when a will has ambiguous language, there are several heirs, or there are claims of forgery or undue influence. Having a well-written will that outlines the allocation of property is crucial. Legal advice and mediation can aid in the peaceful settlement of conflicts.

• Obtaining Probate

The probate process can be drawn out and complicated in places where it is required. A number of time-consuming legal procedures must be followed in order for the court to verify the will and grant probate. A more seamless process is guaranteed when all necessary paperwork, including the will, death certificate, and identity documents, are kept up to date.

• Intestate Succession Complexities

It can be legally challenging to identify the legitimate heirs and their separate portions in intestate succession situations, particularly when there are several heirs. It is essential to comprehend the succession rules’ hierarchy of legal heirs. To prevent conflicts and guarantee equitable distribution, legal counsel can offer advice on how these rules should be applied.

• Document Verification and Authentication

It might be difficult to confirm and authenticate all required documents, including wills, identification documents, and property records, particularly if there are inconsistencies or missing documents. Delays can be avoided by making sure that all documents are in order and properly validated before starting the transfer procedure.

Frequently Asked Questions on How to Transfer Property After Death

Q1. What is the process of transferring property after the death of the owner?

Ans1. The process involves obtaining a death certificate, checking for a will, applying for probate or legal heir certificate (if necessary), clearing any pending debts, and registering the property in the name of the legal heir.

Q2. What documents are required to transfer property after death?

Ans2. Documents include the death certificate, legal heir certificate, identity proof of the legal heirs, the property’s title deed, and any existing will or succession certificate.

Q3. Can property be transferred without a will after the owner’s death?

Ans3. Yes, property can be transferred without a will. In such cases, the legal heirs must obtain a legal heir certificate or succession certificate to establish their claim.

Q4. What is a legal heir certificate, and why is it important for property transfer?

Ans4. A legal heir certificate is a document that identifies the legal heirs of a deceased person. It is essential for transferring property to rightful heirs in the absence of a will.

Q5. How is a will executed for property transfer after death?

Ans5. The executor named in the will applies for probate in court. Once granted, the property is transferred according to the terms of the will.

Q6. What is the role of probate in property transfer after death?

Ans6. Probate is a legal process where the court validates the will. It is mandatory in some states and ensures the property is transferred as per the will’s instructions.

Q7. What happens if multiple heirs claim the property after death?

Ans7. In case of disputes, legal intervention is required. The court may decide the distribution based on the will (if available) or the succession laws applicable.

Q8. Are there any taxes involved in property transfer after death?

Ans8. Yes, stamp duty and registration fees may apply during the transfer process, depending on the state laws. Inheritance tax is generally not applicable in India.

Q9. How can joint ownership affect property transfer after death?

Ans9. In joint ownership, the surviving owner(s) typically inherit the deceased’s share. The process varies based on the type of joint ownership (e.g., joint tenancy or tenancy in common).

Q10. Can a property be sold immediately after the owner’s death?

Ans10. No, the property must first be transferred to the legal heir(s). After completing the transfer process, the new owner(s) can sell the property.