LEGAL PERSPECTIVE: Transfer of property on death by Dr AbdelGadir Warsama, Legal Counsel

Dr AbdelGadir Warsama, Legal Counsel

On the death of a person, the property may pass into the ownership of another person in one of three ways. Usually it passes either by testamentary succession or intestate succession. The former, occurs where deceased disposed of the property by his Will, the later where he did not do so and, moreover, under the law as to intestacy his estate to be distributed according to the rules of the law.

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Title to personalty, requires that, we know how the property devolves upon the person entitled to enjoy it under a Will and the mode of devolution under an intestacy. In such circumstances, the position, where the property has been disposed by a “Will” in which an executor has been appointed, the legal title vests immediately in the executor upon the death of the testator. Then the executor, provided no need of any payment necessary for expenses or debts, vests the property in the person entitled under the Will by means of an assent, conveyance, delivery, or other proper transfer.

In the case of personalty, the vesting usually takes place by a physical delivery, if the property is such as can pass by delivery, or such form of transfer as is appropriate for those kinds of property which are incapable of physical delivery and require further formalities for their transfer from an executor to legatee. Such as an assent, which is in this respect, is simply an intimation that the executor does not require the property for the discharge of the liabilities of the estate and that it may therefore pass to the beneficiary.

Thus a transfer of shares in a company cannot be registered unless a proper instrument of transfer is delivered to the company as per the provisions of the Law, provides that the personal representative of a deceased shareholder need not himself be registered as a shareholder in order to make a valid transfer. If the executor does not vest the property in the beneficiary but dispose otherwise, as where he sells it upon a deficiency of assets, then he vests the property by delivery or formal transfer, and the purchaser gets a good title by his receipt and is thereby exonerated from seeing to or being answerable for the application of the purchase money. Other means to be explained later.

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