LIFE IS UNCERTAIN SO IS YOUR PROPERTY AFTER DEATH

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                                LIFE IS UNCERTAIN SO IS YOUR PROPERTY AFTER DEATH

Shubham Budhiraja[1]


Property disputes are inevitable especially when it comes to family matters. There are numerous arrangements through which a person post his death can transfer property to his family or friends concern. There are majorly two methods –

1.       Testamentary – If there is a Will

 

2.       Non-Testamentary – If there is no Will

For Testamentary, the method is where person makes a Will and Codicil. It is a Legal declaration by a person during his lifetime of “his” property in favor of “anyone” as executor in presence of 2 attesting witness signed, dated. Since, it is a legal declaration. Therefore the person making will must be a major person and competent. It is the wish of the testator to whom he executes the will. If there is no executor is named in the Will or if executor renounce or has died or executor is sick and unable to execute then the probate application can be filed by any person to get the appointment of administrator by the court. The role of administrator is same as that of an executor. The probate petition is filed in High Court along with following documents;

-          Copy of will

-          Consent affidavit

-          Affidavit of attesting witness (if alive)

-          Sit map of property

-          Valuation of property

-          3 % court fees

-          Details of legal heirs and their relationship

Thereafter HC serve Notice and citation order made where objections invited. If there are no objections then court will issue probate.

Probate is the certification by court of competent jurisdiction that will is a valid will.

Challenge to probate the will before Writ court or in appeal

-          Signature of testator not verified

-          Will induce by fraud, coercion, etc.

Stages of Will

1.       Drafting of Will

2.       Attestation of Will – 2 witness and signature

3.       Registration of Will- in presence of 2 witnesses, and during lifetime of testator before sub-registrar. Though optional but makes the case more strong if will is registered in mutation records.

4.       Execution of Will – Through probate petition in High Court

 

For Non-testamentary Instruments, if there is no Will then property dispute resolved through succession or partition. There are following ways

 

-          Get the succession certificate: file Petition in district court along-with death certificate, relation of heirs with person died. The purpose of succession certificate is to allow legal heirs to carry on the legal cases on behalf of person died. The succession certificate by no way transfer the property. It merely gives status of successor for purpose of discharging the liabilities or receives interest on behalf of deceased person. The property can be transferred only through a conveyance deed or otherwise but succession certificate create no ownership rights.

 

-          Family relinquishment deed: Through this family members can within themselves agreed to divide the shares and get it registered through sub-registrar. It is the most convenient method.

 

-          Partition suit: This is the last and residuary option to claim share in the property. It is preferable where no right is created in Will by testator or he has get nothing through relinquishment deed.

 

-          Suit for declaration of title on basis of adverse possession

 

Before exercising any of the options, following things are necessary

1.       Electricity bills payment receipts

2.       Death certificate

3.       Water bill payment receipts

4.       Property site map

5.       Valuation of property

Options available to person during his lifetime

1.       Execute a Gift deed

2.       Will

3.       Conveyance deed

Laws governing  

1.       Registration act, 1908

2.       Indian Evidence act, 1872

3.       Indian succession act, 1925

4.       Transfer of property act, 1882


[1] Company Secretary & Final Year Law Student From Faculty of Law, University of Delhi

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