Property transfer will take place under HSA in case there's no will

The Private Client team at Cyril Amarchand Mangaldas shares their comments and opinions in an article in the  following Q&A which was published by the Mint Newspaper on 9th June, 2021 and the online edition of the same can be found here.

My father passed away in 2016. He left behind a house where I stay with my wife, mother and younger brother, who is unmarried. My mother is willing to transfer the house to my brother and I as a gift. So, these are my questions. First, what is the process for getting the ownership changed to my brother and I? Second, what are the fees to be paid to the government, if any? Third, how much taxes are we supposed to pay? Fourth, is there a time limit to transfer the ownership? Fifth, how much will it cost in lawyer fees?

—Name withheld on request

We assume that you are Hindu by faith and, therefore, subject to the Hindu Succession Act, 1957 (HSA). We further assume that your father died intestate (without leaving behind a valid Will). Under such assumptions, your father’s Class I legal heirs, being you, your brother and your mother, will all receive an equal share in his assets (including the house).

Since there is no Will in place, the transfer as per the provisions of the HSA will take place. Based on the location of the property, you will be required to obtain either a letter of administration or a succession certificate (from the court having competent jurisdiction).

To complete the transfer, revenue records need to be updated. As this is inheritance, apart from the charges payable for this certificate, there should not be any other charges. In the event your mother wishes to forgo her rights, she can either release her rights or gift her rights in favour of yourself and your brother.

But there may be tax and stamp duty implications on such a release, so please consult a counsel.

Please note that there will be charges such as stamp duty, registration fees, cess etc., in the event your mother transfers her rights to you and your brother through any instrument of transfer. The lawyer fees will depend on the calibre of the lawyer/firm that you choose. So, choose wisely.