Handling Finances After Parent's Passing: Probate, Transfer Of Assets And More

The passing of a parent is heart-wrenching enough, but when it is followed by complications with the transfer of assets, it becomes even more difficult to bear. Processes that are simple to execute become cumbersome and time-consuming.

But growing awareness is resulting in more people preparing for the effective distribution of their assets when they are no more.

The most important document in this regard is a last will and testament. It eases the process of receiving assets for the inheritor, effectively removing roadblocks before they arise.

The process of inheriting assets, including real estate, can take six to eight months in an ideal scenario, but can take more time in the event of complications.

Here's a look at the various steps in the process if a will and testament exist.

The first step is to find the will. There is a possibility that the parent wrote multiple versions of their will over their lifetime.

It is important to find the latest version of this, because it will always override an earlier document unless proven invalid, according to Bijal Ajinkya, partner at Khaitan & Co.

Once the will has been found, the next step is to find the person entrusted with the role of executor in the will.

There is no restriction on who can perform this role. For instance, if the parent had assigned one of their business partners as the executor, the partner would have been notified when the will was being made. This individual is responsible for carrying out the last wishes of the writer of the will.

"It is also the executor's responsibility to ensure that the tax of the estate is paid correctly, debts are paid off and funeral expenses are met," Ajinkya said.

A probate, or a validation of the will by the court, is a requirement in Mumbai, Kolkata and Chennai, according to Ajinkya. The executor makes this application.

"The system was crafted in the British era as they essentially ruled from the port cities. These three cities had a system where after a person's passing, a validation of the will by the court was required. This is called the probate," she explained.

The application for the probate is usually done through a lawyer, after which the process normally takes four to eight months. As mentioned earlier, this is not a requirement in other cities.

In order to issue a probate, the court will need a no-objection letter from all the heirs, according to interstate laws. Once the probate is received, the next step is the distribution of the assets as per the will.

When it comes to other holdings like insurance and provident funds, the procedure does not require a probate.

"In these cases, the nominee is the heir, and the amount can be transferred to the nominee without the probate when they present the death certificate," Ajinkya said.

In the case of other assets, being the nominee does not mean that the nominee is the heir but is simply like a trustee, she said. The nominee will be a custodian who will hold the assets till the executor calls for a transfer.

This is where the work begins in most cases in locations outside Mumbai, Kolkata and Chennai. At this stage, the executor takes the probate and the will, and approaches the banks and the relevant civic authorities for each type of asset. For example, for the transfer of shares, the executor must approach the Registrar and Transfer Agent.

If the probate is not required, the will and a death certificate will suffice.

However, when it comes to the actual transfer of assets, banks have their own internal procedures and compliances. For example, banks outside Mumbai, Kolkata and Chennai may also demand a probate during the process of transferring of assets, if the amount is above a certain threshold.

"Our clients have had to approach the Delhi High Court for a probate because the bank had a limit in their own internal compliance regarding the transmission of the balance," Ajinkya said.

At the conclusion of this step, the authority updates the records to reflect the new ownership. The executor must then follow through and update other records, like society records, to complete the process.

If a no-objection certificate is not issued by the heirs when seeking the issuance of a probate, then the process will change.

Beneficiaries that disagree with the contents of the will can make an objection on three grounds. They can allege that the author of the will was forced to write it, or that the signature is not authentic. Alternatively, an allegation can be made that the person did not have the mental capacity to write the will.

"If any heir challenges the will or refuses to issue the no-objection certificate, then the petition for the probate is converted to a normal legal suit," Sanjay Asher, partner at Crawford Bayley & Co, said. In this scenario, there is no fixed timeline, with some cases lasting for years without resolution.

All these steps can only apply when a will is left behind. There may be various cases where a parent may have passed without doing so.

The procedure to follow in this case, is entirely different. In the second part of this series, we bring you the steps to follow when there is no will.

Stay tuned for part two, coming out on Sep.19.