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How do nominees differ from legal heirs?

Can a person become the owner of a flat or property merely by the virtue of being made a nominee in the form submitted to a housing society? Also, does a will or testament supersede the nomination in such a case? And, is a probate compulsory for wills?

—Name withheld on request

It is settled law that a nominee does not become the owner of the property. Nominee holds the property in trust for the legal heirs.

The role of a nominee in case of apartments / flats in housing society or a condominium is limited to that of a representative of the legal heirs of the deceased member and in no manner become the successor replacing the rightful legal heirs. No rights and benefits are created and extended towards the nominee when the legal heirs are alive.

Nominee is only a person with whom the society or a condominium can deal with pursuant to the death of the member, up until the rightful legal heir does not come forward to seek transfer of the rights in the property.

The reason behind nomination has been that title or rights to the property cannot remain in abeyance and hence until the rightful legal heirs comes forward to seek a transfer, there is a person who can oversee the affairs of the property.

In case the deceased has left behind a will and has also nominated a person by virtue of a nomination form, then the person to whom the property is bequeathed under the will, shall be entitled to the property as opposed to the person who has been nominated under a nomination form. A nominee’s rights does not supersede the rights of a beneficiary under a will.

In a nutshell, a will would prevail over nomination.

Under Indian succession laws, a probate of a will is mandatory if the will or codicil has been executed in Kolkata, Chennai and/or Mumbai, or, if the immovable property is situated in any of the aforesaid cities even if the will is executed in any other place.

Harsh Parikh is partner, Khaitan & Co.

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Updated: 29 Aug 2023, 11:04 PM IST

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