A Will is super important because it lays out the final wishes of the person who owns the assets regarding who gets what. However, disputes in families usually arise if the testator’s last wish conveyed through the Will is not liked or found favorable by some family members. That’s why it’s crucial to establish the Will’s claim quickly to protect the rights of the property mentioned in it.
Also, make sure to check the Will itself; the Will should be attested by two witnesses and the scribe (writer) of the Will can also be a witness. Secondly, registration of Will is optional but recommended. Thirdly, even though probate of Will is optional now, it’s still recommended.
Take these steps to get property given under Will transferred in your name
If you want to get the property listed in the Will transferred to your name, here’s what a legatee usually needs:
- The original Will (and, if unregistered, evidence of due execution such as the attesting witnesses’ confirmation, since a Will is proved by testimony rather than registration alone);
- The testator’s death certificate;
- A legal heirship or heirs’ certificate/affidavit, which some registrars and revenue authorities ask for even in the presence of a Will, simply to have a record of who the other legal heirs are
Adnan Siddiqui, Partner at King Stubb and Kasiva, explained to ET Wealth Online that it’s wise for families with potential disputes to get a no-objection affidavit from the other legal heirs. This NOC merely records that the other heirs have no objections and doesn’t involve any transfer of rights (since they have none to transfer).
However, in cases where the other legal heirs have a legitimate claim to the property and are willing to give it up in favour of another person, then a release deed is required.
Siddiqui says: “A release deed is a conveyance instrument used only when a right genuinely exists and is being given up.”
Also when the estate includes bank accounts, shares, or other movable assets, Siddiqui says a succession certificate may separately be needed to operate those, even though it is not required for immovable property passing under a Will.
Also read: Is Will registration mandatory? No, but two witnesses are required by law
What is release deed?
Advocate Shreya Sharma, Founder & CEO, Rest The Case, said to ET Wealth Online that a release deed is a legal document through which a person who has an existing right or interest in immovable property voluntarily gives up or releases that right in favour of another person, typically an existing co-owner or co-heir.
Sharma says: “In the context of inheritance, it becomes relevant when several legal heirs inherit a property and one or more of them decide not to retain their share and instead release it in favour of another heir or co-owner.”
For example, if three children inherit a property and two of them decide that the third child should retain the property, the two heirs giving up their respective shares can execute a release/relinquishment deed in favour of the third heir.
The important point is that the person executing the deed must have an existing right or interest in the property. A release deed is not a mechanism for giving up a mere future possibility of inheritance.
Sharma says that where the transaction extinguishes rights in immovable property, registration is generally compulsory under Section 17(1)(b) of the Registration Act, 1908. An unregistered document that is required to be registered cannot ordinarily affect the immovable property or be used as evidence of the transaction affecting that property under Section 49.
A registered release deed therefore provides an important documentary link in the chain of title. It records who had the right, who gave it up, in whose favour it was released, and when that release took place.
It is particularly important when the property is subsequently proposed to be sold, mortgaged, redeveloped or otherwise transferred, because the buyer, lender or their legal advisers may require evidence showing how the interests of all the original heirs were dealt with.
What about updating mutation records?
The first step involves taking possession of the property as per the Will and securing your rights (via release deed, NOC, etc if necessary).
The second step is updating mutation records. You should also get the encumbrance certificate for the property.
An encumbrance certificate (EC) shows all registered transactions and legal or financial liabilities on a property for a specific time like bank loan, etc.
Siddiqui mentions that the legatee must apply for mutation (updating the municipal or revenue “khata”/property tax records) in their name, supported by property tax receipts and, where available, an encumbrance certificate.
It’s important to note, Siddiqui says, that while mutation does not confer title, it’s crucial for tax payments and managing the property administratively.
What about Christians, Parsis, and other non-Hindu individuals?
Non-Hindus are governed by the Indian Succession Act whereas Hindus are governed by Hindu Succession Act.
For non-Hindus, the document set is largely the same Will, death certificate, heirship details.
Siddiqui says that earlier non-Hindus needed probate or a letter of administration, now it is optional. Earlier, probate was only needed in Mumbai, Chennai or for Kolkata properties.
Siddiqui, however, advises that obtaining probate or letters of administration remains the single most valuable additional document for Christian and Parsi legatees (and for Hindu legatees dealing with Mumbai, Chennai or Kolkata property), since it forecloses future challenges to the Will’s genuineness far more effectively than the Will standing alone.
Given how often registrars, banks and housing societies get this checklist wrong by defaulting to “release deed,” families dealing with inherited property are well advised to have the document set reviewed by a succession lawyer before approaching the registration authority, so that the transfer is not delayed by a requirement that has no basis in law.
