Affidavit of "No Objection" - Tool to Transfer Inheritance in India without Court Order

August 10, 2021

Santosh K. Pawar, Esq.


Transferring ownership of any asset, cash or non-cash (property), requires compliance with applicable laws. There are many misconceptions for transfer when any asset is owned by the deceased.


All legal heirs have equal share in every asset of the deceased. Anyone intending to deprive other legal heir(s) of his/her/their equal share, on any ground, whatsoever, must be in possession of court order.


Legal heirs do have an option to mutually agree on share of each legal heir and partition assets left behind by the deceased.

Most legal heirs, NRI’s and Resident Indians alike, upon demise of asset owner, face this dilemma as to where to begin, what steps to take to initiate transfer ownership of assets, and how to acquire their individual share in each asset (cash of the Estate.


Non-familiarity of applicable laws and rights, NOT ONLY, compels many legal heirs to EITHER not initiate the process OR consent to relinquish their share in the Estate of the Deceased, BUT ALSO, creates animosity in family relationships.


This blog is an outline of process followed by sample format for “Affidavit of “No Objection”, when legal heirs decide to transfer ownership by unanimous consent.

I. Key Concepts of Inheritance & Rights of Legal Heirs


1. Upon demise of any asset owner, all of his/her asset(s), automatically become property of a separate legal entity, known as “The Estate of the Deceased”.


2. Ownership is transferred from “The Estate of the Deceased” to lawful successor.


3. No action may begin till legal representative of the Estate of the Deceased is duly appointed.


4. Legal Representative manages all assets of the Estate of the Deceased from the date of his/her death till he/she transfers each asset in compliance with law.


5. All income, interest, rental, or otherwise, generated any asset of the Estate of the Deceased is taxable till the Estate owns the asset. Hence, Legal Representative is mandated to file income tax return of the Estate of the Deceased every year from the date of death of the deceased till transfer of assets to successors.


6. Legal Representative of the Estate is not permitted to transfer any asset to himself/herself, to any legal heir, or third party till he/she obtains court order determining rights of all legal heirs in each asset.


This requirement may be waived ONLY if all legal heirs, by unanimous consent, agree on their respective share in each asset, now owed by the Estate of the Deceased, AND duly execute and submit affidavit of “No Objection” before appropriate authorities.


7. If existence of valid and duly executed “Will” of the Deceased is claimed, no transfer may be done on the basis of claimed document till Court declares the document to be valid and duly executed OR in the alternative, all legal heirs relinquish their present and future claim to dispute validity and proper execution of “Will”.

II. Legal Heirs' Options for Court Proceedings


Whenever legal heirs disagree on distribution and transfer of assets of the Estate, on any ground, any legal heir has an option to seek assistance from judicial courts. There are two types of proceedings, that may be filed in court, i.e.,


1. Administration of the Estate of the Deceased, i.e. Probate/Letter of Administration; OR

2. Partition of the Estate of the Deceased among successors.


Under both proceedings, partition of the Estate occurs under court supervision. The Court determines share of each legal heir, appoints legal representative to collect and manage assets of the Estate of the deceased till distribution. Legal Representative deposits all income, if any, in separate bank account of the Estate of the deceased, and files income tax returns of the Estate till all assets of the Estate are lawfully distributed.


III. Requisites of Affidavit of “No Objection”


a. Affidavit of “No Objection” is consent statement, and hence, the same must be executed willingly, knowingly, without any coercion and undue influence, and after proper knowledge and understanding of inheritance rights as well as contents of legal document.


b. The document must be valid and executed in compliance with law.


c. Legal heirs may execute this document with or without monetary compensation.


d. Legal heir(s) have a right to refuse. No reason or justification is required by any legal heir for not providing duly executed Affidavit of “No Objection”.


e. Essential elements of the document are:


i. Must identify the asset in question;

ii. Specify right(s) of each legal heirs in the asset;

iii. Specify right/claim being relinquished;

iv. Statement that the executant knows and understands his/her inheritance right;

v. Statement that the executant knows and understands contents of the document;

vi. Statement that the executant has received/waived independent legal advice;

vii. Declaration that the executant is executing the document willingly, knowingly, without any fraud, coercion, undue influence, and after properly understanding contents of the document in question. relinquishing his/her share in the asset in question; and

viii. Declaration that he/she does not object if the asset in question is transferred to the individual named in the document.


Hence, it is suggested that every legal heir must seek independent legal advice, get the document prepared or reviewed by independent legal professional, and execute the same under guidance of his/her own counsel.


SAMPLE FORMAT

AFFIDAVIT OF “NO OBJECTION”

OF ___________________ (name of legal heir)

Re: Transfer of Ownership of __________ (identify asset)

To _______________________ (Name of successor)


I, ______________________________________ , do hereby solemnly affirm and declare as under:-


(1) That I am biological son/daughter OR Wife of Late Sh./Smt _______________________. I presently reside at ______________________. My telephone number is _____________. My Email is ________________ .


(2) That I was born on __________ at _______________ .


(3) That I am submitting this affidavit for transfer of ownership of the property no. ___________________, located at __________ from the deceased owner, Late Sh/.Smt. ___________ , to _______________ (name of successor).


(4) Late Sh./Smt. _____________, born on _________, expired on ___________ at ______________. Copy of Death Certificate is enclosed.


(5) That Late Sh/Smt. ________________________ was governed by the Hindu Succession Act at the time of his/her death.


(6) hat based upon the enclosed Sale deed dated _______, registered with the office of Sub-Registrar _________ under registration number __________, the deceased was sole and undisputed owner of property located at _____________________ admeasuring _________ sq. ft. till the date of his/her demise.


(7) That names, addresses and telephone number of all legal heirs of late Sh./Smt. ___________ are as follows:


(Please provide, name, age, address, telephone number, and relationship with deceased)



(8) That the deceased did not leave behind any other heirs except the ones mentioned above.


Option A (When no one claims “Will” of the Deceased)


(9) That, to the best of my information and belief, the deceased did not leave behind any valid and duly executed “Will”.


(10) That I am aware that as per laws of natural succession, I am entitled to ____ % share in the asset _____________ (identify asset).


(11) That I, hereby, relinquish my present and future claim in the said asset without any consideration (Or upon payment of _____________ by ___________, on or before _________ (date).


(12) That I, hereby, declare that I have no objection, whatsoever, if the aforesaid property is transferred in the name of ________________.


Option B (If Will Claimed).


(9). That the Sh./Smt. _______________, s/o D/o W/of __________________ has claimed existence of valid and duly executed document dated __________, claiming to be “Will” of the deceased, which states that the deceased bequeathed the property no. __________ to ____________________.


(10) That I am aware that I have a right to dispute validity and proper execution of claimed document, titled, “Will” and require ____________ to obtain court order declaring that the claimed document is valid and properly executed prior to transfer of the same in his/her name.


(11) That I, hereby, relinquish all my present and future claim to dispute validity and proper execution of the document titled “Will”, without any consideration (OR upon payment of _____________ by ___________, on or before _________ (date)).


12. That I, hereby, declare that I have no objection, whatsoever, if the aforesaid property is transferred in the name of _____________ in accordance with terms and conditions of the document, titled “Will”.


(13) That I, hereby, declare that transfer of property based on the present affidavit of “No Objection” by civil authorities in favor of ________________ would be binding on me as well as my heirs.

(14) That I can read and understand English, and have read and understood contents of each paragraph in this Affidavit of “No Objection”.


Or


That I cannot read and understand English. The interpreter, ______________, whose certificate of Translation is attached herewith, read each paragraph of this document in ___________ , a language in which I am fluent, and I understood everything before executing this document.


(15) That, at my request and instructions, _________________ (name of attorney), who is an attorney, prepared/reviewed this Affidavit of “No Objection”.


OR


That I am aware that I have a right to obtain professional legal assistance for preparing/reviewing the present Affidavit of “No Objection” for transfer of property, _________ . I do not intend to retain services of any legal professional and approve contents of this document.


(16) That I certify, under penalty of perjury, that all of the information in this affidavit were provided by me, that I reviewed and understand all of the information contained in this affidavit and all of this information is complete, true and correct.


(17) That I, hereby, declare that I have executed this document voluntarily, freely, without any fraud, coercion, undue influence, after knowing and understanding my inheritance rights in the asset and contents of this document.


(18) That I, hereby declare that I have no objection if property ___________ is transferred in the name of ___________________________ .



____________________________

Deponent


Verification


Verified at ________, this___________ day of__________202_____ that the contents of above affidavit are correct and true to the best of my knowledge and belief, and nothing has been concealed thereof.


____________________

Deponent


Author: Santosh K. Pawar is managing attorney of Law Firm of Santosh K. Pawar. She is licensed to practice in India and U.S. She specializes in U.S. Immigration and NRI property matters and provides consulting and assistance to NRIs for transfer of inherited assets located in India. For more information and assistance, contact by WhatsApp at (585) 474-0935 or email at santosh@attorneypawar.com.









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