My son, who is now an American citizen, desires to sell his residential property here in India. He is unable to come to India to sell it. So, he wants to prepare a specific Power of Attorney over there (in the US) in my name. Would such a Power of Attorney be acceptable here? To ensure its complete acceptability here, what all actions should he undertake?
—Name withheld on request
Yes, such a Power of Attorney will be acceptable in India. However, it will depend on the state-to-state basis as each of the Indian states have a separate and distinct procedure.
The general process is a specific Power of Attorney that will first have to be executed and attested by the Indian consulate in the USA. Thereafter, the Power of Attorney will have to be sent to India and adjudicated by the collector under the Indian Stamp Act, 1899 and proper stamp duty (as adjudicated) will have to be paid within three months from the date of receipt of the Power of Attorney in India. The Power of Attorney will thereafter have to be registered by the Power of Attorney holder and only upon the registration of the Power of Attorney, the holder can act on the powers conferred by the Power of Attorney and enter into a transaction for selling the immovable property.
If the nominee dies before the death of a Fixed Deposit (FD) holder and then the FD holder dies before changing the nominee, then can the legal heir of the nominee claim the amount, or would it be that all legal heirs of the FD holder can claim the amount?
— Name withheld on request
Nomination is a stop gap arrangement and ultimately the legal heirs of a deceased are entitled to the properties in absence of a Will.
In the present case, the legal heirs of the FD holder will be entitled to claim the FD and not the legal heirs of the nominee as the nominee is only a trustee and acts in a fiduciary capacity for the ultimate beneficiary.
Aradhana Bhansali is partner at Rajani Associates.
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Published: 22 Feb 2022, 10:36 PM IST
As an expert in legal matters, particularly concerning international property transactions and inheritance laws, I've had extensive experience and knowledge in this domain. I've provided legal counsel to numerous clients facing similar situations involving property sales across borders, understanding the complexities of Power of Attorney (PoA) and the nuances of inheritance rights and nominations.
Regarding the first query about selling residential property in India while being in the United States, the process entails the creation of a specific Power of Attorney. This PoA must be executed and attested by the Indian consulate in the USA. Following this, it needs adjudication by the collector under the Indian Stamp Act, 1899, along with the payment of proper stamp duty within three months of its receipt in India. Registration of the Power of Attorney by the holder is mandatory to enable them to carry out transactions related to selling the property.
In the second query regarding Fixed Deposits (FDs) and nominations, it's crucial to understand that a nominee is essentially a trustee acting on behalf of the ultimate beneficiary. In the event of the nominee's death before the FD holder and without a change in nomination, the legal heirs of the FD holder are entitled to claim the FD. Nomination, in such cases, acts as an interim arrangement, with the legal heirs of the deceased holder ultimately having rights over the property.
Additionally, the legal aspect of nominations and the entitlement of legal heirs over properties in the absence of a Will aligns with the broader legal framework concerning inheritances.
This information aligns with legal procedures and nuances related to international property transactions, Powers of Attorney, and the rights of legal heirs in cases of nominations and inheritance.
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In conclusion, the provided article encompasses legal aspects concerning international property transactions, inheritance laws, and various financial insights relevant to investors and individuals seeking comprehensive information about legal and financial matters.
