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Heirship certificate is necessary when a property owner dies intestate (without making a will). It has to be obtained by immediate family members (father, mother, wife, sister, brother, children, grand children etc.). If some members of the family do not want any share of the property, they will be named as opponents in the Heirship Application.
In the context of Heirship certificate procedure in Maharashtra :
|Purchase Price of Property||Jurisdiction|
|Below 5,00,000 (Five Lakhs)||Civil Judge (Junior Division) (Lowest court)|
|Above 5,00,000 (Five Lakhs)||Civil Judge ( Senior Division) (District/Sessions Court)|
WHERE TO FILE
When someone passes away, their Hiership Certificate can be filed at the appropriate court closest to where they lived at the time of death or where their property or part of their property is located. All properties, no matter where they are located can be included in one application. The local court will then send letters to other courts where other properties are located and obtain verification reports from them. The application for heirship has to mention the properties and the districts and the district courts they fall under for properties out of the jurisdiction of the local courts.
In Maharashtra, if the purchase price of the property to be claimed was less than 5,00,000 (Five Lakh), then the Court Fee is calculated as per the following formula :
|Purchase Price of Flat||Court Fee||Minimum Amount|
|01 to 50,000||2%||1000|
|50,000 to 2,00,000||4%||6000|
|2,00,000 to 3,00,000||6%||6000|
|3,00,000 to 5,00,000||7.5%|
|5,00,000 and above||75,000||75,000|
For properties costing more than Rs 5,00,000 (Five lakh) at the time of purchase by the deceased, there is a flat fee of Rs 75,000 (Max) no matter how many properties and where they are located.
NOTE : Incase the property is under joint ownership and only one owner has expired, then the purchase price of the property will be taken at 50% of the total purchase price and the jurisdiction and court fee will change accordingly.
Sometimes the Judge allows depreciation and you can get away with paying Rs 58,000 instead of Rs 75,000. But that’s a hit or a miss.
COURT FEE PAYMENT SCHEDULE
Court fee (stamp) at time of submission : Rs 50
Court fee (stamp) on Vakalatnama : Rs 10
*Full Court fee is only payable once your application is approved by the judge...which is much later after your application is submitted and all the checking is over . It is the final step. After the payment of Court fee, your Hiership Certificate is issued.
You can include all properties, wherever they may be located, in one single Heirship Application to the court. The court fee is capped at Rs 75,000…no matter how many properties you include and what the total price of the properties was.
The Application is typed and submitted in court as a Miscellaneous Application (Civil) category. It is now compulsory to file all applications online via efiling (version 3.0) website .
You must first register yourself and wait for approval. Then you can file the application.
You must register on this website first
The court will send bailiffs to inquire with people in your community and neighbors to gather information about your background. They will then submit a report to the judge. If you have properties in other districts or cities, the court will also request a report from the local court or magistrate. Once these reports are clear, your application for heirship will be approved.
Once all necessary tasks have been completed, it will be incumbent upon you to fulfill the court fee in the prescribed manner as stipulated by the court. Following this, the Judge shall provide you with the Heirship order that is rightfully yours.
The Entire Procedure should take 4-5 months, if the person/advocate is following up regularly.
Powers/Rights obtained via Heirship Certificate
First—An heir, executor or administrator, holding the proper certificate,
may do all acts and grant all deeds competent to a legal heir, executor or administrator, and may sue and obtain judgment in any Court in that capacity.
Second.—But, as the certificate confers no right to the property, but only indicates the person who, for the time being, is in the legal management thereof, the
granting of such certificate shall not finally determine nor injure the rights of any
person ; and the certificate shall be annulled by the Sessions/District Court, upon proof that another person has a preferable right.
Third.—An heir, executor or administrator, holding a certificate, shall be accountable for his acts done in that capacity to all persons having an interest in the property, in the same manner as if no certificate had been granted. And that is the reason why the Heirship Certificate holders are supposed to give an inventory of any property they have sold to the court every year. This is done so that the court has an accurate record incase someone files a counterclaim later that you deprived him or cheated him from his share as he/she is also an heir.
DOES IT MAKE YOU AN ‘OWNER’ OF THE PROPERTIES?
An heirship certificate DOES NOT make you the “owner” of a property. It just gives someone the confidence to deal with you in matters related to a deceased person’s affairs. It’s like an assurance for that person, so they won’t be held responsible if anything goes wrong.
However, it’s important to note that holding an heirship certificate doesn’t protect you from being sued by other claimants or having the certificate cancelled by a court. If it’s discovered that you were involved in fraud, any money you received for the property may have to be shared or refunded to the rightful heirs. If you don’t comply, the government may sell your property to fulfill the rightful heirs’ claims. To pursue this, the claimant would need to file a case in court.
DIFFERENCE BETWEEN HIERSHIP CERTIFICATE, SUCCESSION CERTIFICATE AND LETTER OF ADMINISTRATION
An HEIRSHIP CERTIFICATE is a legal document granted by the appropriate court to the heirs of a person who has passed away without leaving a will. It is specifically applicable to non-movable assets such as flats, properties, and land owned by the deceased individual. The purpose of this certificate is to establish and validate the rights of the heirs over these immovable properties. The heirship certificate serves as proof of their entitlement and allows them to assert their ownership and make necessary transactions related to those assets.
On the other hand, a SUCCESSION CERTIFICATE is another legal document issued by the court that grants the heirs of a deceased person the authority to inherit and manage their movable assets. Movable assets encompass a wide range of properties and valuables, including bank accounts, shares, money, gold, jewelry, cars, bikes, and other personal belongings. The succession certificate acts as a testament to the legal status of the heirs and authorizes them to access, transfer, or dispose of the movable assets left behind by the deceased individual. It provides the necessary legal framework to ensure a smooth distribution of these assets among the rightful heirs.
In contrast, a LETTER OF ADMINISTRATION is a document granted by the court to an individual named in a will as the executor or administrator (Someone whom the dead person authorised to carry out and fulfill all that is written in the will).
It can also be granted to another person when no executor is named in the will or the person named as executor in the will is unwilling or not in a position or dead.
This person, named in the Letter of Administration as the Administrator, is entrusted with the responsibility of carrying out the instructions stipulated in the will regarding the distribution of assets.
Unlike the heirship certificate and succession certificate, the letter of administration is applicable when the deceased individual has left a will behind. The named executor or administrator is legally bound to oversee the proper execution of the deceased person’s wishes as detailed in their will. The letter of administration empowers the executor to manage the estate, handle any financial matters, settle outstanding debts, and distribute the assets to the designated beneficiaries as outlined in the will. It is important to note that the named executor or administrator does not become the owner of the assets mentioned in the will but rather serves as a fiduciary in fulfilling the wishes of the deceased.
Other Type of Letter of Administration : A letter of Administration can be directly granted (without probating a will) to the legal heirs of a Hindu, Muslim, Budhist, Sikh, Jain if the decesed died without making a will (Intestate) . But such a letter of Administration can only be granted to a person who is entitled to the property anyways (lineal descendant ie sons, daughters, grandsons, granddaughters etc , tier 1, tier 2 hiers etc) as per inheritance laws.
These legal documents play a crucial role in the posthumous transfer of assets and help streamline the inheritance process. They provide a clear framework for the distribution and management of both movable and immovable assets in accordance with the law. The issuance of these certificates and the letter of administration helps ensure the rightful transfer of assets to the appropriate beneficiaries, provide legal protection, and prevent potential disputes among the heirs.
In short : Heirship certificate is like GST number. You don’t need it unless your business turnover per year crosses 40 lakhs … but nobody will deal with you unless you have it.
This is the entire gist of the matter 🙃
FOR MUSLIMS (Sunni’s)
In Muslim law, inheritance is determined by Sharia. The shares in the property are divided based on factors such as the number of children, their gender, and the relationship to the deceased. Generally, males receive twice the share of females. A Muslim person can only will up to one-third of their property while they are alive. After their death, Sharia law determines the distribution of the remaining property among the heirs.