Inheritance, often known as succession, is the transfer of property to a successor or heirs after the death of the owner. A transfer of property means transferring ownership of the property. For the transfer of the property, one must establish their claim or prove their title as the rightful heir. A Will can be used to do this effectively.
What is a Will?
A Will is a legal draft that clarifies an individual's preferences for how their assets shall be distributed amongst their successors after their death. It is one of the most viable methods to transfer properties and assets.
The Will can be registered or unregistered; a registered Will is regarded as a safer alternative.
- A Will is deemed to be a ‘registered Will’ when the draft of the Will has been registered with the relevant government officials and offices. Compared to unregistered Wills, registered Wills are more secure and viable for property transfers.
- The Will, along with the testator and the attesting witnesses, must be presented to a sub-registrar, who will verify the document and confirm that it fits all legal criteria. The said exercise ascertains their identities and contributes to the legitimacy of the document. The sub-registrar’s office keeps a record of the Will on file, which can be easily obtained when required.
The
Indian Succession Act, 1925, oversees the transfer of property in India through a registered Will. The Act establishes the legal requirements to make a Will, register it and transfer the assets to the beneficiaries as defined in the Will. In addition, the statute establishes the procedures for probate of the Will as well as administrative management of the deceased’s assets. It is imperative to adhere to the provisions of the Indian Succession Act, 1925 when a property is being transferred via a registered Will to make sure there are no issues in the transfer process.
What is Probate?
As per Section 2(f) of the Indian Succession Act, 1925, probate refers to a certified copy of a Will that carries the seal of a Court, which has legal jurisdiction where the property, whether movable or immovable, mentioned in the Will is located.
- Probate is defined under Section 2(f) of the Indian Succession Act, 1925 as a certified copy of a Will under the seal of a court of competent jurisdiction under which the property mentioned in the said Will is situated, whether movable or immovable.
- Probate is basically a legal procedure to authenticate the validity of a Will and make sure that the Testator’s assets are handled as per their wishes.
- In addition, an executor may be appointed and sent to oversee the process of the Will being executed and the assets being distributed to the beneficiaries.
- You can file a petition under Section 276 of the Indian Succession Act, 1925 to request for a probate of a Will.
Procedure to Transfer Property Through a Will
- Getting a Copy of the Registered Will
Getting a certified copy of the Will from the sub-registrar's office where it was recorded is the first step.
- Seeking Probate (if required)
If the Will needs to be probated, a petition must be filed under Section 276 of the Indian Succession Act 1925 before the Court of Competent Jurisdiction for the probate certificate. Copies of the testator's death certificate, the registered Will, and any other pertinent paperwork should be submitted with the application.
You must get the property being transferred evaluated to accurately calculate the stamp duty and registration charges that must be paid for the transfer to occur.
- Payment of Stamp Duty and Registration Fees
After the appraisal has been conducted, the government authorities must be paid for stamp duty and registration costs. The relevant charges may vary as per the property’s value and the State where the transfer takes place.
A transfer deed must be drafted by a lawyer and contain all the particulars of the properties, both movable and immovable, their descriptions, their beneficiaries, and the consideration received for the transfer.
The beneficiaries and the Will's executor must both sign the transfer deed for it to be valid.
- Registration of the Transfer Deed
The transfer deed must be registered with the sub-registrar’s office that has jurisdiction in the area. Presenting the transfer deed, paying the necessary fees, and supplying additional pertinent documents are all required throughout the registration process.
Following the registration of the transfer deed, the executor must transfer ownership of the property to the beneficiaries in accordance with the conditions of the Will that was previously registered.
Documents Required to Transfer Property through Registered Will
- Certified copy of the Registered Will
- Death certificate of the testator
- Valuation report
- Identity proof
- Power of attorney
- Affidavits
Conclusion
Registered Wills, although similar to unregistered Wills, offer quite a range of benefits than their counterparts, including the choice to file a petition for a probate of the Will, which basically ensures your assets and properties are handled exactly as per your wishes. Besides, considering a copy of such Wills is maintained in the sub-registrar’s office, there is a much smaller scope for any unethical method being used to deal with your assets.
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