Property

How legal heirs can transfer real estate of deceased

LegalKart Editor
LegalKart Editor 04 min read 1870 Views
Last Updated: Feb 27, 2024
Procedure to transfer inherited property to one of the legal heirs

Inheriting property after someone’s death has multiple processes, as all of them require a different fundamental setting. When a person dies, they may or may not leave behind a will. Due to this, there are two different processes that are carried out to ensure the inheritance and subsequently the transfer of the deceased person’s property. 

Deciding Heirs

When the deceased had already made a will

A will only becomes enforceable after the death of the testator, and unless there are any challenges to the will, the distribution of property is carried out in the manner laid down in the will. The will can also be either registered with the sub-registrar, even though that is not a necessity. The court will grant probate if there are no protests. A probate is will certified by court and is valid proof of the will.

When the deceased had not made a will 

The process is slightly more complicated when there is no will guiding the distribution of property after the person’s death. In that case, the heirs of the deceased can appoint amongst themselves one or more administrators who then obtain Letters of Administration to the estate of said deceased person. The distribution of the property then is on the basis of mutual settlement between the legal heirs, or in some situations, the court settles the distribution instead. Usually, the laws of succession come into effect in the case where there is no will made. Laws of Succession are different according to the religion followed by the deceased, so the personal laws differ in differentiating between legal heirs. Currently, non-Hindu religious groups adhere to their own particular regulations in this area. Hindu succession law entails Hindu Undivided Family (HUF) rules for the property. All legitimate heirs or coparceners of HUF holdings are given a right to the coparcenary property at birth. If the deceased passes away without a will for self-acquired property, coparcenary rules will apply to both ancestral and self-acquired property.

Documentation

Once the distribution of property between the beneficiaries is decided, there is documentation required to enable the transfer of the property of the deceased. An application to transfer property needs to be given at the sub-registrar’s office. Usually, the documents required are as follows: 

  • Death Certificate

  • Will 

  • Will with probate/succession certificate

  • Ownership documents of the assets

  • If there is absence of will: 

  • Affidavit

  • No-objection certificate from other legal heirs/successors

  • Declaration of any consideration paid to claim another heir’s share of the property

Mutation

After the property gets transferred, mutation of the property title is required. Getting the property in your name in all official records after an inheritance is known as mutation. You won't be able to use the property for any loan mortgage, rent agreement, or sale without a change of title ownership recorded in official records, such as those kept by municipal corporations. It is a process carried out to transfer the title of an immovable property from one person to the other in the land revenue records, as for the payment of property taxes. This is also required as it adds to the evidentiary value of a person owning a property. The documents required for mutation of property differs according to the state, but the main document required are those proving the ownership and transfer of property. When it is ancestral property without the required resources, one needs to trace the title of the property, and claim evidence of whether or not the deceased person had paid any compensation to acquire the said property. The process of mutation is carried out in the local municipality office.

Rights and Liabilities

Upon inheriting a property, the successor inevitably assumes any existing encumbrances, mortgages, disputes, and the like. Furthermore, any transfer of a mortgaged property necessitates written consent from the lender. Hence, in the event of the demise of a property owner with an outstanding mortgage, the successor - who could be the spouse or children of the deceased - inherits the responsibility for settling the remaining loan. Conversely, if the deceased had procured a home loan insurance, the insurer would be obliged to settle the unpaid loan with the lender. In such a scenario, the successor would need to secure a loan clearance certificate from the lender, alongside the original property documents previously submitted for the loan, subsequent to the insurer's payment.

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