Two Prerequisites of Any Inheritance Transfer in India
Transfer of inherited property, cash or non-cash, is a legal process governed by prescribed laws. Compliance with the same is mandatory.
Inheritance is a legal right. No legal heir, male or female, may be deprived of the same without due process and in violation of applicable laws. Non-compliance has SEVERE civil as well as criminal consequences.
All NRI’s confront similar circumstances upon losing their loved ones, not having adequate legal information about their rights, how to claim inheritance, defend their rights against wrongful actions by other legal heirs and/or third parties, and most importantly, where, and how to begin.
Before relinquishing share of inheritance or deciding not to take any action to claim the same at all, let us examine various underlying requirements and process of valid TRANSFER OF INHERITANCE in India.
An inheritance is passing down of assets, cash and non-cash, of the deceased to successors/beneficiaries. Lawful Transfer is mandatory to acquire any ownership rights in the same.
If it is your property, it should be in your name. If it is not in your name, it is not your property.
Right of Ownership is right to occupy, use, mortgage, transfer (Sale, donate, gift, etc.) to oneself or third party, and/or collect/use rental or interest income generated by the assets of the deceased.
The person or entity who has authority to transfer any asset is asset owner or his/her legal representative.
Upon death of asset owner, all legal heirs of the same class, male or female, acquire equal share in the assets owned by the deceased, until proven otherwise.
Any legal heir may claim partition of his/her individual share at any time, without providing any reason, whatsoever, immediately after death of asset owner.
Two prerequisites of any valid inheritance transfer are:
Determination of Ownership Rights; and
Appointment of legal representative of the deceased
Determination of Ownership Rights/Entitlement of Legal Heirs
Determination of ownership rights of legal heirs is the first step. All legal heirs, male and female, are presumed to have equal share in inheritance until proven otherwise.
What is the process to determine inequality of legal heirs?
There are two legal processes - out of court settlement by legal heir by entering into unanimous agreement OR Judicial Settlement by entry of Court Order.
Unanimous Agreement is the best option, if available. All legal heirs duly execute required legal documents, which include "No Objection" and "Relinquishment Deed" and register the same with office of sub-registrar where assets of the deceased are located, to transfer ownership.
Any legal heir has an option to refuse to relinquish his/her share without providing any reason. In the absence of unanimous agreement, legal heirs have no option but to seek judicial order.
When "Will" is claimed to deprive any one or more legal heir of their share of inheritance, claimant of "Will" has burden of proof to establish that the claimed “Will” is valid and duly executed in compliance with applicable laws.
"Will" is a legal document. It cannot be implemented till validity and proper execution of the same is established in court of law. Although, probate of “Will” is not mandatory in India (except in Mumbai, Kolkata and Chennai), implementation of "Will" requires further legal action.
Any transfer of estate asset, cash or non-cash, including rental or interest income generated by any estate asset, made by any legal heir, including surviving spouse, to oneself or to any third-party without complying with applicable laws is wrongful and illegal.
Appointment of Legal Representative of the Deceased
Once, rights of legal heirs are determined, legal representative of the deceased is required to be appointed to administer the estate. No one else, except duly appointed legal representative has authority to transfer assets of the deceased.
Duly appointed legal representative has fiduciary responsibility to administer the estate, i.e., open the estate, collect collecting assets, make inventory of assets and liabilities, paying debts and taxes owed by the deceased, and rendering accounting to all legal heirs, and then transferring assets in compliance with law.
Legal representative is known as “Executor” or “Administrator”. “Executor” is a legal representative named by the deceased in his/her “Will”. Legal representative is called “Administrator” if there is no “Will” or named “Executor” is not able or willing to act as legal representative of the estate of the deceased.
Who Appoints Legal Representative of the Deceased
-Unanimous Agreement or Judicial Action
Legal Representative of the deceased may be appointed by unanimous agreement of all Legal heirs. If unanimous agreement is not available, power to appoint legal representative lies with judicial courts.
The legal representative, known as Executor or Administrator, has fiduciary relationship with other legal heirs. He/she is accountable to each legal heir for his/her actions in settling the estate and transferring the assets in compliance with laws.
Legal heirs have a right to take appropriate court action against any wrongful and illegal actions/inactions of the said legal representative.
To conclude, applicable laws and established processes have built-in safeguards and protections for all legal heirs, male or female alike, to ensure justice. It is strongly recommended that legal heirs seek independent professional legal counseling to make informed decision prior to relinquishing thier claims or protecting rights in inheritance.
Author: Santosh K. Pawar is managing attorney of Law Firm of Santosh K. Pawar. She is licensed to practice in India and U.S. (state of New York), and specializes in NRI legal counseling and services besides US Immigration, Family Law, and Property Laws. For more information and assistance, contact by email at santosh@attorneypawar.com, call at (585) 264-1649 or WhatsApp at (585) 474-0935.
