Law Explainer: Transfer of property to Beneficiaries under a Will or inherited under Succession laws

This write up addresses questions as to, (1) How beneficiaries under a Will, will get title to the property they have obtained under the Will; (2) In cases where there is No will, and properties devolve upon legal heirs under respective succession laws, how legal heirs can perfect their title to the property; (3) Who will transfer property to beneficiaries under the Will or to Legal heirs who have succeeded such properties; (4) What would be the nature of transfer Instrument, (5) What would be the stamp duty payable on any such transfer Instrument; and of course the Registration to complete title.

This write up only talks for Immovable properties and not Movable properties, like shares and securities, moneys lying in banks, FDs, and so on.

There are two ways a person succeed to Immovable property, (1) either under the applicable succession law, like we have Hindu succession Act, or (2) under the Will.

In cases where there is no Will, legal heirs acquire right, title and interest in the subject properties, immediately on the death of the owner of the subject property. However, further steps needed to complete the title in favour of the heirs.

In these cases, one of the Legal heirs may apply for Letters of Administration without Will, by filing appropriate legal proceedings before competent court of Jurisdiction. The person who apply for Letters of Administration is called the “Administrator”.

Once Letters of Administration is obtained, all such properties which the deceased possessed of at the time of his / her death, may be transferred by executing Transfer deed, by the Administrator in favour of legal heirs, in accordance to their entitlement. After execution of transfer deed, such deeds must be registered before sub-registrar of Assurances, like any other property registration, so as to perfect the title of the legal heir. These Transfers are provided under Article 59(c) of the Maharashtra stamp Act, 1958. Kindly check other State Stamp Act to find out applicable Article which provide for such transfers. The Maharashtra Act provides stamp duty at Rs.500/- and Registration charges at Rs.1000/ for such transfers.

 

Now, coming to Succession to properties under a Will, Properties, both Movables and Immovables, are bequeathed / bestowed under the Will. In many cases, Executors are appointed in the Will, and in many cases, Executors are not appointed.

After the death of Testator (who has had made the Will), the properties of the Testator vests in the Executor, if so appointed in the Will. If not appointed, the Legal heirs of the deceased Testator take appropriate steps. Vests means ownership and contextually here, it means, Vesting as trustee to the properties.

The Executor or the Legal heirs has the responsibility for the distribution of the properties in accordance to the wishes of the Testator, expressed in the Will. In many cases, the Executors are the Legal heirs and even they are beneficiaries under the Will.

 In cases of Will, the Executor apply for probate of the Will before competent court of jurisdiction. If there is no Executor named in the Will, then one of the Legal heirs have to apply for Letters of Administration with Will, before competent court of jurisdiction. The person who apply for Letters of Administration is called the “Administrator”.

Once probate or the Letters of Administration is obtained, all such properties which the Testator possessed of at the time of his / her death, may be transferred by executing Transfer deed.

Such Transfer deed will be executed by Executor or the Administrator, as the case may be, in favour of the beneficiaries under the Will. After execution of transfer deed, such deeds must be registered before sub-registrar of Assurances, like any other property registration, so as to perfect the title of the legal heir. These Transfers are provided under Article 59(c) of the Maharashtra stamp Act, 1958. Kindly check other State Stamp Act to find out applicable Article which provides for such transfers. The Maharashtra Act provides stamp duty at Rs.500/- and Registration charges at Rs.1000/ for such transfers.

Therefore, to sum up, if you are a beneficiary under the Will, and you have been given certain share or absolute share in any Immovable properties under the said Will, you have to secure obtaining probate of the Will, either thru Executor or thru yourself. If Executor is not appointed, then you have to obtain Letters of Administration with Will.

Once probate or Letters of Administration is obtained from competent court of Jurisdiction, the Executors or the Administrator can transfer Immovable properties by Executing Transfer deed in favour of the beneficiary, under Article 59(c) of the Maharashtra stamp Act, 1958; and get it Registered before sub-registrar of Assurances, in the same manner as you register any immovable property. The stamp duty is Rs.500/- and Registration charges are Rs.1000/.

If Executor and beneficiary are one and the same person, then also, such Transfer deed can be executed. Section 335 of the Indian Succession Act, 1925 deals with the situation where Executor and the beneficiary under the Will are one and the same person. The above section indicates that Assent by the Executor to his own Legacy is required, in the same manner as if the Assent is given to another person / beneficiary under the Will.

It is argued that section 213 of the Indian succession Act, 1925, which warranted obtaining of probate, is deleted, and therefore probate is not required. Kindly note that section 213 is deleted but section 22 of the Administrator General Act, 1963 is not amended and the said section still requires obtaining of probate / Letters of Administration.

The deletion of section 213 implies that obtaining of probate / Letters of Administration is relaxed, but parties may still obtain probate/ Letters of Administration to complete their title to the property.

Also note that, when section 213 was in existence, Muhammadans were relaxed from obtaining of probate / Letters of Administration. But when it comes to completing title in their name, Muhammadans were also required to obtain probate / Letters of Administration.

Obtaining of probate / Letters of Administration cannot be relaxed because that might lead to mischievous situations where purported beneficiaries under the Will, will get the property transferred in their names without even the knowledge of Legal heirs, who are purportedly excluded and not given properties in the Will.

In the process of obtaining probate / Letters of Administration, Notices are duly served upon all the heirs of the deceased, calling upon them, if they have any objection to the grant of probate / Letters of Administration, they can register their objection by filing caveat. This is the safeguard against mischievous and fraudulent transfers; and therefore, obtaining of probate or the Letters of Administration is must to prevent mischief and complete the title.

 

Sandeep Jalan

Advocate.