TRANSFER / MUTATION OF PROPERTY

One of the most crucial aspects of property issues is inheritance and subsequent requirements related to this. Inheritance logically happens through one of the two processes – either a state of natural succession or through the Will document that an individual makes.

Natural Succession

In case of a man, in case he dies without leaving a will (“intestate”), as a process of natural succession his assets stand equally divided between his mother, wife and children. If all these are absent then the assets would be inherited by the father, siblings and grandchildren. In case of a woman, if she dies without making a will her assets will get divided equally between her kids. In situations where unfortunately either the husband/child is disabled or the children are minors, then the properties would be passed on through a trust in the future.

Will

In situations where the Will is present, after the demise of the concerned person, the heirs would, in any case, be clearly stated and they would have to provide the Will and death certificate to appropriate legal authorities to get the document implemented. Whether it is a single heir or multiple heirs, it becomes important to get all papers in order to make sure that the instructions of the deceased are followed clearly. In case of NRIs they should note that it is absolutely permissible for them to make their Wills in the country of their current residence but they do need to mention their Indian properties clearly so that there is no ambiguity later on. It is preferred to make a Will in India for the Indian properties and get it registered for the sake of surety and clarity. While getting the registration done, please remember that the two witnesses that you choose should be people who can come to the court to attest the documents if needed. If unable to travel to India, then it would be fine to make the Will in the country they reside with clear instructions on the Indian properties.

That’s the part on asserting the legal ownership of the assets. The next crucial part is to understand the need for Transfer and Mutation of the assets.  Mutation of a property implies that the change or ‘transfer’ of a property from one name to another is recorded in the municipal records. In order to be able to enjoy the full benefits of the property you inherit, it is important that the property be in your name. Whether you want to live in it or rent it out or sell it off at a later stage, the asset needs to be in your name before you do anything. The proper manner of getting a property transferred in your own name is to submit to the legal authorities all relevant documents related to that property. This would include all land records, the Will document, the death certificate and all other land related papers. Where there is more than one heir, it is important to take a no objection certificate from the other heirs before getting the property transferred. Also, in such cases, when the mutation is done the documents would have to mention the names of all the heirs. This is crucial to avoid any conflict or dispute later on.

NRIs need to comprehend that transferring a property doesn’t imply just declaring on a piece of paper or through word of mouth that the property stands transferred in somebody’s name. Appropriate procedures need to be followed and all rules and norms should be adhered to. In the case of NRIs in particular this issue of inheritance becomes tricky because there could be complications of illegal documents like Wills or other land documents. Whether they inherit or are gifted a property, NRIs often face problems of illegal transfers, illegalpossession or even illegal sale by representatives or relatives or even some third parties.

Whether the property is a rural agricultural one or urban residential or even commercial, in most situations, overseas citizens do not have the correct knowledge about procedures or formalities. In addition, these procedures could vary from state to state and also from property to property. NRIs need to understand these terms and procedures carefully so as to avoid become victims of their inability to be present all the time to take care of the properties in India.