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Why Heirship certificate matters

Saturday, April 14, 2018

In property related matters, difficulties often arise if the owner passes away without creating a will. This is where heirship certificate comes in handy. Advocate Tanmay Ketkar explains its significance

Rising prices of property has changed the perceptions and buying motives. Now a property is not perceived as mere necessity or shelter, but also an investment.

So long as person who has bought the property is selling it, there is no difficulty. However, sometimes a property is held by the owner, due to market conditions or for getting more and better returns. However, a demise of the owner before selling the property would make the transaction a bit difficult.

In case of demise of owner there are two possibilities. Either the deceased person has executed a will or the deceased had died intestate i.e. without making a will. In either of the possibility, the heirs are compelled to approach the appropriate court. If the person has executed the will, the legal heirs must get the probate or if there is no will the heirs must get the heirship certificate. Once there is probate or heirship certificate the property can be safely transferred or soled by such heirs.

The missing link
Sometimes a property is sold or transferred by the heirs without probate or heirship certificate. In such transactions, even though the property is sold or transferred by the legal heirs, the name of deceased continues to appear on records of property. In absence of probate or heirship certificate, due to missing link between deceased and heirs who have transferred the property, the purchaser may have to face numerous difficulties and delay in transferring the record of property in his own name. If the transaction involves finance from banking or non-banking financial corporation, the scrutiny of title puts question mark on title of legal heirs, which in turn delays the actual disbursement of money. This would create the problem for the purchaser as well as the seller.

Therefore, before entering into any transaction, the title and flow of title must be studied. If the property in question is ancestral property, there must be proper link of transfer i.e. probate or heirship certificate or other documented transfer. If the link is missing or cannot be established, its better to clarify the issue before proceeding.

As far as urban areas are concerned we are experiencing the era of redevelopment. No or limited availability of open spaces and dilapidated conditions of existing structures together are boosting the redevelopment projects. Properly planned and executed redevelopment project is a blessing for existing unit holders of old structure, developer and new purchasers as well.

Conflicts and complications
The most critical part in redevelopment project is the consideration to be paid to existing unit holders. As a general practice the existing unit holders are given the equivalent or additional area to their existing holding. In such circumstances also, if the purchaser or the owner is no more, there could be conflict. If there is only one legal heir, there would be less complications. However, if there are more than one legal heirs it is difficult to ascertain area of each legal heir, which would lead to dispute. For redevelopment project, any dispute however small, is dangerous. Since the developers are tending to be interested in no dispute or minimum dispute, it is better to avoid or resolve such dispute at earliest. The best way to resolve such dispute is to get probated will of deceased or heirship certificate, which will leave no room for such dispute.

In nutshell, to have clear and marketable title, it is very important for legal heirs of the deceased to complete the legal formalities of probate or heirship certificate.
Also, a purchaser must be cautious while buying an ancestral property from legal heirs. Purchaser shall not proceed unless and until there is established link between deceased owner and current legal heirs.

Quick Bytes
In nutshell, to have clear and marketable title, it is very important for legal heirs of the deceased to complete the legal formalities of probate or heirship certificate.

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