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Like a trustee, a nominee has to transfer the property to legal heirs

LiveMint logoLiveMint 25-04-2017 Marylou Bilawala

About two years ago my parents passed away. After a few months when we started looking through the papers of their investments and holdings, we found that one of our distant relatives had been named as the nominee in some of the assets. Can you please tell me if nominees need approval from the legal heirs to sell a property? There are seven legal heirs to the property in question here.

—Bhamini Parekh

Nominations are made for convenience to enable the entities—like companies, depositories, bank co-operative societies and insurance companies—to discharge their obligations and to enable them to deal with a specified nominated person until the legal heirs are ascertained and to protect the assets and rights of the deceased until the legal heirs can take steps to assert their claim.

Thus, on the death of a person, the nominee is entitled to receive the amounts payable (as trustee on behalf of the legal heirs) but the amount so received by the nominee will be held for the benefit of the ultimate legal heirs and is to be distributed according to the laws of succession, i.e., testamentary or intestate succession.

Nomination does not confer any beneficial interest on the nominee nor does it result in transfer of ownership of an asset to the nominee. A nominee acquires a limited interest in the property, like that of a trustee and is bound to transfer the property to the legal heirs, as may be determined by testamentary or intestate succession.

A nominee therefore would not be legally entitled to sell or transfer good title to a third party purchaser.

If there are seven heirs each of whom has a share in the property, each of them would require to give their consent to the sale of the property in this case.

Is it possible to make a Will online? Also, would it be better to go to a lawyer than to make one myself?

—Ashwinee Saha

It is possible for you to draw up your own Will without going to a lawyer. However, sometimes, depending upon the nature of the bequests and the complexity of the Will, in order that the intention of the testator is properly given effect to and not defeated, it may be better to seek professional help.

A properly drafted Will would minimize potential conflicts amongst heirs. Moreover, in India, since we have different personal laws that apply to different religions/communities even in respect of testamentary succession (that is succession through a Will), it is important to understand the extent to which personal properties can be willed away, by whom and to whom.

If you are not seeking professional help, please ensure that your Will is duly executed in the manner set out in the Indian Succession Act, 1925. For this purpose, your Will should be executed by you in the presence of two witnesses competent to contract (neither of whom, nor their respective spouses, should be a beneficiary under your Will) and your attesting witnesses must attest (i.e. sign) the Will as your attesting witnesses, in your presence and in the presence of each other, after they have seen you executing the Will.

Marylou Bilawala is partner, Wadia Ghandy & Co. Advocates, Solicitors and Notaries

Queries and views at mintmoney@livemint.com

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