I am 58 yr, Female. My mother has a house in Nerul, Navi Mumbai in a co-operative housing society. At the time of purchase (1995), it was booked and registered with myself as first holder and my Mother was the second holder. My mother passed away in July 2019. My mother had not made any will. I have a younger sister. I want my mother's house to be shared between two of us equally. Mother did not have any other major assets, and whatever was there was shared equally and amicably by us. I need opinion on how to remove my mother's name and add my sister's (53 yrs)name - both in Building Society records and Property Registrar's records. What are the tax implications if and when we sell the house.
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On mother demise her 50 per cent share would devolve on you and your sister
2) approach society to transfer mother share in sister Jane
3) enclose your NOC
4) if society insists you will need to obtain letters of administration from district court as mother died intestate
1. this query has come across as very pleasing and very rare to see that a sibling wants to share with her other sibling equally and amicably. In most of the cases that is not so. So this is quite gladdening to know.
2. your mother was the 50% owner of the flat.
3. after her demise her 50% share will devolve on her legal heirs as per intestate succession
4. i am assuming that your mother's legal heirs are only you and your sister
5. so the mother's 50% share would devolve on you and your sister equally
6. consequently your share in the flat will increase to 50% + 25% (inherited from mother's 50% share) = 75% whereas your sister will have the balance 25%
7. since you want that both the sisters should have equal share in the flat, you can release your 25% share in favour of your sister by registering a release deed in her favour. The release deed would attract a stamp duty of only Rs. 200 and nominal registration fee plus registration agent charges and lawyer's fees
8. in order to complete the title, you also have to obtain an heirship certificate from the Court for declaring you and your sister as the only surviving legal heirs of your mother. Any sister can apply to the Court with the consent of the other sister.
9. you then have to submit the heirship certificate and registered release deed to the society with an application for deletion of your mother's name from the society records and mutating and transferring the share certificate to the joint names of you and your sister
10. alternatively you can also apply for a letter of administration from the High Court with the consent of your sister. The Court will appoint you as an administrator and you then have to register transfer deeds in your favour and your sister's favour. These transfer deeds do not attract any stamp duty. In the transfer deed between you [in your capacity of an administrator] and your sister, you can join as a confirming party for transfer of your 25% share to your sister such that in effect she would get 50% share in the flat
11. whichever mode you choose, either the heirship petition or the letter of administration, both will attract court fees which will be computed based on the market value of the flat [considering its 50% market value]
12. some lawyers advise to submit affidavits or indemnities to the society for deletion of the deceased's name and adding the name of the applicant, which is an entirely wrong and erroneous procedure and does not confer any valid title on the persons
13. as regards the tax implications, those will arise only upon sale. You and your sister would be liable to pay capital gains tax i.e. tax on the capital gains [purchase price minus sale price]. There any many ways by which this tax can be avoided as per law, which a competent CA would tell you. For you, the purchase price will be the 50% of the price paid at the initial time of purchase whereas for your sister the purchase price will be the 50% price which was paid by your mother for the flat.
Dear sir,
1. Approach to the cooperative society and inform them about the situation and request them to transfer your mother's share in favour of your sister by enclosing a NOC
2. You can accompany with a legal heir certificate and succession certificate which shows that you and your sister are bonafide legal heirs.
Thank You
- As per law after the death of your mother intestate , her share in the property would be devolved upon you and your sister equally.
- Move an application before the society with the death certificate of your mother and thereby request to transfer the mothers half share in the name of your sister .
- However, society may require your NOC or release deed for the same.
If your mother is no more alive then your sister has to apply for getting her name included in the property records held by the local civic body as well as in the society records by producing the legal heir ship certificate as well as her death certificate.
Actually after your mother's intestate death, all her children are her legal heirs and her share in the property shall devolve on her legal heirs who are successors to succeed to the estates left behind by your deceased mother.
Thus this is not the process of removing and including the names. Your sister cannot claim equal share in the property especially if you and your mother are the joint owners in the property then your sister shall be entitled to only half share out of your mother's half share in the property.
The applicable long term capital gains tax have to be paid by the sellers at the time of selling this immovable property.
1. The house in question is jointly owned by you and your mother, since deceased.
2. You and your sister shall inherit her 50% share of the house equally.
3. So, obtain a legal heir certificate from the ward councilor of your local Municipal Corporation.
4. File an application before the Society enclosing the death certificate of your mother and the said legal certificate seeking addition of your sister's name as 25% owner of the said house.
You need to get the same done through submitting death certificate to society and add her as 100 percent nominee. Other wise you can execute registered settlement deed and then add her name as joint member in society. If you need any further assistance then you can approach me through LinkedIn.
In continuation to my above question of removing deceased mother's name and adding sister's name What is the exact procedure to procure heirship/succession certificate/ letter of administration for the house in Navi Mumbai. Also what are taxes / charges involved.
1) you have to file petition in district court for issue of LA
2) enclose death certificate of deceased sister
3) schedule of property
4) pay maximum court fees of Rs 75000
5) succession certificate is only for movable debts and securities and not for immovable property
For inheriting the immovable properties, succession certificate is not necessary, you can obtain a legal heir ship certificate from the jurisdictional revenue office/Tehsildar by submitting an application along with the copy of the death certificate mentioning the names of all the legal heirs of your deceased mother.
There no taxes to be paid for obtaining the legal heir ship certificate
You need to apply by filing petition in appropriate court for succession by paying court fees and lawyer fees. In your case it will be HC
- You should apply for getting the Legal heir certificate from the revenue department , and submit the same with the society.
- Documentary proofs of all legal heirs with death certificate are required for getting the legal heir certificate.
1. succession certificate is clearly not applicable. I dont know who said that. It is required only for moveable assets like debts and securities.
2. you can choose from among heirship certificate or a LA
3. The court fees is the same for both
4. for the court fees you need to compute 50% value of the flat [which stood in your late mother's name] as per the stamp duty ready reckoner. Depending on the value so determined,the court fees will be calculated depending on which slab the market value falls in. The maximum court fees is capped at Rs. 75,000/-
5. apart from court fees, there is lawyer's professional fees which would vary from lawyer to lawyer. There is no fixed fee.
6. then comes clerkage which is required to be paid to the testamentary clerk whom the lawyer will engage for the liaison work in the Court's department/registry
7. the clerkage for heirship certificate/LA can be in the range of Rs. 20k to Rs. 40k max. Different clerks charge different fees.
8. then there is stamp duty and registration fee. If you go for a LA, then stamp duty will be nominal say Rs. 500/- on the transfer deed plus nominal registration fee. The registration agent charges will be anywhere between Rs. 10k to Rs. 15k.
9. if you go for an heirship certificate, then release deed will have to be registered. The duty is only Rs. 200/- and registration fee is nominal as above and agent charges same as above. By this release deed you will releasing your 25% share which you inherited from your mother's 50% share in favour of your sister such that she becomes 50% sharer.
10. the charges for drafting the release deed will have to be paid to the lawyer who would be engaged.
11. in my view some court fees on the heirship petition can be saved if the release deed is registered first
12. in my view it is preferable to go for an heirship certificate since its quicker than obtaining a LA which takes around 8 to 9 months
13. the charges for getting a LA would be different than for getting the heirship certificate
14. in a LA if there is consent of the legal heir of the deceased in favour of the application then no court hearing happens. However in case of an heirship petition there is a court hearing and the Court passes an order for granting an heirship certificate within 1 or 2 hearings itself. After that it is only departmental work which the court clerk handles to get the actual certificate
15. there are no taxes as such. Only the abovesaid charges.
16. as informed before the above is an expensive procedure but is actually the correct procedure which confers proper title on the legal heirs of the deceased owner, to her property and it would ensure that in future there is no problem, particularly by banks in case the purchaser has taken a home loan, as banks always insist for heirship certificate or LA
17. after the above procedure is done, you will have to submit the share transfer forms to the society for effecting the mutation in the joint names of yourself and your sister
dear sir,
Obtain a succession certificate from the competent civil court
Apply In-Person for Legal Heir
Apply through Civil Court for Succession Certificate
Thank You
1. In your case, you are not required to collect succession certificate or letter of administration.
2. You shall have to obtain a legal heir certificate from the ward councilor of your local Municipal Corporation.
3. The Councilor might ask you to submit an affidavit affirming the legal heirs of your mother to play safe.
4. No tax is required to be paid by you for obtaining the said legal heir certificate.