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IREF® - Indian Real Estate Forum > Real Estate Open House > Indian Property Laws > Inheritance of property: Know the process
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Old July 1 2012, 12:50 PM   #1
 
 
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Default Inheritance of property: Know the process

The loss of a parent or a loved elder is a painful incident in our lives. But along with it comes the complications of inheritance, of which, the most cumbersome is the process of inheriting immovable property. Where a clear will is absent issues regarding actual ownership and rights lead to conflict among brothers and sisters.

Even when a clear will exists, several legal issues could crop up. It is in such circumstances that a good understanding of the rules and regulations governing inheritance of properties comes in handy, especially if one is likely to face the challenge of placating multiple claimants.

First Things First

Before making a claim to any property left by the deceased, one needs to make sure that there are no debts outstanding, in which case they would need to be cleared before any division of the property can be thought of. All the heirs would have to first agree to chalk out a strategy to clear the debt.

In case there is ambiguity in the will, and it does not match accurately with the total existing assets mentioned in it, legal advice must be sought while arriving at any kind of settlement. Lack of clarity in the will can lead to serious legal complications at a later stage, which can be avoided by working in the right direction in the beginning itself.

Starting the Legal Process

The very first step in the right direction is to get hold of the testator’s will. This can be obtained by applying along with the deceased’s death certificate to the district registrar.

The registrar will open the sealed will in front of all the heirs and then hand over a copy to each applicant. In case the deceased has nominated only a single heir then only one copy would be provided. In case there is no will then as per the Hindu Succession Act the property will pass on to Class 1 heirs who include spouse, children and mother of the deceased. In case of absence of Class 1 heirs, it would pass on to the Class 2 heirs comprising of father, grandchildren and siblings.

If the deceased was a woman then the property is equally divided among the husband and children in case the woman has died intestate (without a proper will). In case of the heir being a minor or disabled, the property is transferred through a trust at a suitable point in future.

Once the legal ownership of the property for that heir is confirmed, the next logical step is to apply for mutation of the house to local municipal authority.

It is essential to know that mutation only helps in updating the records of the government and in no way confirms ownership. However it is an essential step in cementing your ownership on the house.

In order to apply for the mutation one needs to deposit all the relevant legal papers of the house, proof of inheritance through the will, death certificate of the deceased and land records of the said property.

A no-objection certificate from the other heirs is also required in case of multiple heirs. Any challenge to this application for mutation will be referred to the sub divisional magistrate. However, the appeal for dispute must be within 30 days of the mutation order. In case of multiple legal heirs to the property the mutation document would bear the names of all the heirs.

Once these legal formalities are over then the heir is at liberty to either reside in it or rent it out. He can even sell off the property as he is the sole owner of the house. In case of multiple heirs to the house, it is advisable to mark the division of property among them right at the time of mutation to avoid subsequent complications.

Thankfully, till date there is no inheritance tax in our country and one does not need to pay any additional charges for a house inherited.

However once the house is legally yours you may have to pay wealth tax in case the net worth of all your properties exceeds Rs 30 lakh. An inherited house can greatly boost your total asset value or come as a saviour in difficult times. Knowing the right provisions that are applicable will help you to get what is rightfully yours without any legal delays or hassles.






Inheritance of property: Know the process

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Old July 23 2012, 03:44 PM   #2
 
 
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Default Risks of not creating a will

Payal Gupta was a smart woman, educated, independent, fashionable and well read. She was an investment banker earning a six-figure salary every month. She was the only child of her parents and financially supported her widowed mother who lived in her home town, while she lived in Delhi with her husband, children and in-laws. During the course of her 18 year career, she had bought several properties and other assets.

Last summer, Payal went for a vacation along with her family. Most unfortunately, when the family was travelling back from their vacation, their plane crashed and none of them survived.

Now, after the family gets over the emotional turmoil and has to move on, what do you think would happen to all her assets?

For the records, Payal for operational reasons, had nominated her husband in every investment she made. But she never thought of making a Will. Would you believe it, if I said that her mother would not be eligible to receive any money from her estate?

As per the Hindu Succession Act, 1956 when a female Hindu dies intestate i.e. without making a Will, her property devolves as follows:

Firstly, upon the sons, daughters and the husband; secondly, upon the heirs of the husband, the sister and the brother of the husband, in the above case. Only if the husband, children or brother and sister of the husband are not alive will the estate devolve upon the mother and father of the deceased female Hindu. If the parents of the deceased female are also not around then the heirs of the father and the heirs of the mother of the deceased will be eligible to inherit the assets.

So as per the law, all her hard earned assets have been inherited by her husband’s brother and sister and Payal’s grieving mother is helpless.

Think about it, if Payal had a choice, would she not have wanted her mother’s living expenses and future to be secure? Wouldn’t she have provided for her mother’s well-being? She had the choice then, and so do you, today.

All she had to do then and you have to do now is - make a Will.

There is another side to this coin. Since a woman is connected to two families after her marriage, the succession laws in India have been drafted to safeguard both sides of her life. Hence, any property inherited by a female Hindu from her father/ mother shall, in absence of her children, devolve upon heirs of her father. The property inherited from her husband or her father in law shall, in absence of her children devolve upon heirs of the husband.

A husband will not be entitled to inherit the property left by his wife, if she has acquired the said property from her father/ mother. In the absence of a Will, such property given to her as ‘Streedhan’ will, if she had no children, go to her father and his heirs and not to her husband. Therefore, if she wishes to give that property or part of it, to her husband, she should write a Will.

Today, at a time when the Indian woman has come into her own at both the workplace and home, she is still not educating herself enough about the rules and laws that govern the future of her loved ones. Financial freedom begins at home, and women need to be the ones who take on the onus to achieve this, for themselves and their families.





Risks of not creating a will
 
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