What is a Will?
The transfer of property through a Will in India is governed primarily by the Indian Succession Act, 1925. In simple words, a Will is a legal declaration by which a person (the testator) expresses how their property should be distributed after their death.
Meaning of Will
A Will is a legal declaration of a person’s intentions regarding their property, to be carried out or implemented after their death. A Will can include both movable and immovable properties.
A will can be written in any language and doesn’t need complicated terms. The words used should clearly reflect what the person making the Will (called the testator) wants. As per Section 74 of Succession Act, if the testator uses special words, they are usually meant to be understood in their legal meaning, unless the context clearly shows otherwise. Using simple and direct language can help avoid confusion or disagreements among those who inherit.
Here are some important points to remember when writing the language of a Will:
- Clarity: Use clear and exact words to make sure the instructions are easy to understand. This helps prevent arguments among the beneficiaries.
- Consistency: Use the same terms and names throughout the Will to avoid confusion.
- Certainty: Be specific about who gets what, using full names and detailed descriptions of any property that cannot be moved, like land or buildings.
Testamentary Succession
Testamentary succession denotes the transfer of an individual’s estate in accordance with the directions in their Will. Through this mechanism, the deceased, known as the testator, designates the persons or institutions who shall inherit the property upon the testator’s demise. This ensures that the distribution of assets is carried out as per the expressed volition and intention of the testator.
Essentials of Transfer of Property Through Will
- Execution of the Will:
According to law, the registered Will must be made to transfer either immovable or movable property. The person who creates the Will must sign the document in the presence of two witnesses. The witnesses also need to sign the Will while the testator is there. The witnesses should not be people who are benefited by the Will, nor their spouses.
- Registration of the Will:
Registering a Will is not required by law. The testator can decide on his own whether he wants to register his Will under the Registration Act, 1908, or just create a document that clearly shows his intention to give his immovable property to the specified beneficiary. According to the Registration Act, 1908, a document needs to be registered within four months after it is signed.
However, there is a special rule for Wills. Sections 23 and 27 of the Indian Registration Act say that a Will can be registered even after it is signed, and there is no time limit for doing so. A registered Will is considered to be real and true.
In the case of Rani Purnima Devi v. Kumar Khagendra Narayan Dev (1961), the Supreme Court said that a registered Will alone is not enough to completely remove any doubts about it. If there is suspicion about the Will, and the evidence of its registration is not closely examined, then the Will cannot be considered fully valid. While registering a Will can make it less likely that disputes will arise, it’s important to remember that even a Will that is not registered can still have legal value. To make the Will legally valid, it must be officially recorded with the right government office. To register the Will, you need to present it to a Sub-Registrar. They will check the document to make sure it duly complies with the applicable laws. Once it is registered, the Will is kept at the Sub-Registrar’s office, and a copy is given to the testator. The Will lists the people who will receive the property after the owner dies.
- Beneficiaries under the Will:
A registered Will specifies the inheritance of the property. The person making the Will can divide their property as they like, but there are certain rules they must follow. For example, if the testator has young children, the property should go to someone who will take care of it, like a guardian or a trustee, until the children are grown ups.
- Probate:
It is a legal process that may be needed in some cases. It checks if the Will is valid and makes sure the testator’s wishes are carried out. The probate court can also appoint someone called an executor to manage the transfer of property to the intended beneficiaries.
- Stamp duty:
It can be understood as the tax on legal documents, such as registered Wills. The amount of stamp duty depends on the value of the property and the State/UT where the transfer takes place. The Indian Stamp Act and the stamp duty rules of different States usually specify how much stamp duty must be paid when a registered Will is used to transfer property.
Procedure to Follow while Executing a Will
- Get the original Will and death certificate: The person who is supposed to carry out the Will, or the legal heir, needs to find and take the original Will along with the death certificate of the person who made the Will.
- Check if the Will is registered: A Will that is officially registered with the Sub-Registrar has more legal importance and is convenient to verify. You can get a certified copy from the Sub-Registrar’s office.
- File for probate if needed: Probate is a court document that confirms the Will is valid and gives the executor permission to manage the person’s estate. Required in some States like Maharashtra, West Bengal, and Tamil Nadu according to the Indian Succession Act, 1925.
- Filing of the case: The case is filed in the appropriate court, which is usually the High Court or District Court, by the executor or someone who is entitled to benefit from the Will. The process requires submitting the original Will, a death certificate, a list of assets, and the names of the legal heirs.
- Public announcement: The court sends out a public announcement to let legal heirs or anyone with a stake in the matter know they can raise objections. People who witnessed the Will may be asked to speak about whether it is genuine. If no one objects properly, the court gives approval for the probate.
- Get a copy of the probate or succession certificate, if needed.
Probate proves that the Will is real and gives the executor the right to handle the estate.
In some situations, a succession certificate might be given, especially when someone dies without a Will, but probate is usually better when there’s a Will involved. - Mutation of Property: To change the property records, you need to apply for a mutation. You can do this by submitting your application to the Local Municipal Corporation or the Revenue Department, which is also known as the Tehsildar office. Attach the following documents: probate or will, death certificate, ID proof for the beneficiary, and property documents. Mutation changes who owns property in official government records, like property tax records.
- Execution of a Transfer Deed (if needed): The executor should prepare and sign it in favour of the beneficiary, such as an executor’s deed. Drafted on non-judicial stamp paper according to the State’s stamp duty laws. To register the transfer deed, you need to take it to the Sub-Registrar’s office in the area where the property is situated. The deed must be officially registered there. You need to pay the stamp duty and registration fees that are required, and the rates for these can differ depending on the state and the value of the property.
- Submit the needed documents:
- Death certificate
- Original or certified copy of the will
- Probate or letter of administration
- Property ownership documents like sale deed or title deed
- Proof of identity and address for the beneficiary
- Mutation application form
- Valuation report for calculating stamp duty
- Mutation Approval:
Authorities check the documents and might ask for more information.
Once the approval is given, the property records are changed to show the new owner’s name. Keep copies of the Will, probate documents, mutation order, and registration receipts that have been certified. These should be kept for use later on.
Common Challenges of Transferring Property in India
The following are Common Challenges of Transferring Property in India
- Title Disputes
Title disputes are a common challenge in property transfers. These disputes arise due to conflicts in the ownership history of the property. The requirement to have a clear title ownership to validate a transfer is often ignored. However, historical inaccuracies, fraudulent transactions or unregistered transfers can lead to disputes.
- Joint Ownership Disputes
Properties held in joint ownership often face legal disputes among co-owners. Legal challenges arise when co-owners disagree on the terms of the transfer or if one co-owner attempts to transfer the property without the consent of the others.
- Legal Documentation
The preparation and verification of various legal documents for instance sale deeds, title deeds and encumbrance certificates are essential. The complexity of these documents and the need for precision make this a significant challenge, often necessitating legal expertise to navigate effectively.
- Disputes and Litigations
Properties often have ongoing disputes or litigations that can hinder the transfer process, these issues can arise from multiple claims on the property, boundary disputes or inheritance disagreements. Resolving such disputes can be lengthy and costly, requiring legal intervention and potentially delaying the property transfer significantly.
Conclusion
The transfer of property after death with a Will in India is a multifaceted process that demands careful adherence to legal procedures and thorough documentation. The process requires the Will to be validly executed, witnessed, and, where applicable, probated by the court to authenticate its legitimacy. An executor is appointed to administer the estate in accordance with the Will, ensuring lawful and transparent distribution of assets to the named beneficiaries. This procedure, while robust and designed to minimize disputes, is subject to personal laws of various communities and may involve delays due to probate or legal challenges. Overall, it remains the most effective legal mechanism for testamentary succession, facilitating an orderly and enforceable transfer of property as per the testator’s wishes.
The concept of transfer of property through Will is simplified by our intern, Ms Manya Mishra. She has been assisting the team in bringing informational legal blogs.
