Transfer of property to an unborn child

Property matters are often complicated. In case of an unborn child, on whose name, the property is meant to be transferred, includes certain parameters and pre-requisites that need to be followed. Read more to learn all about it.

Mon Aug 08 2022 | Real Estate, Wills, Probate and Trust | Comments (0)

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As per the Indian Law, section 13 of Transfer of Property Act 1882 defines an unborn child as a child or a baby in its mother’s womb. A person still yet to born does not have any existence and is not counted as a living person but still the property can be transferred to the baby.

Legal status of an unborn child

An unborn child is termed as a person post his/her birth. Infant enventresa mere i.e. child in the womb is supposed to take birth for many reasons. As per the property law, the unborn child can attain definite rights and inherit the property but only in case he or she is born alive. Although the unborn child cannot be considered as a person yet his/her rights can be vested in the hands of his/her trustees. 

Rights of an unborn child on property under the property act

The thesis of child enventresa mere under the property act gives the right on property to an unborn child only if he or she is born alive. By the time he/she is born, till then all the rights lay in the name of his or her parents/trustees. One can easily consult a family lawyer and seek online legal help or advice in Delhi, Mumbai, Chennai, Bangalore, Hyderabad, Pune, Goa, Kolkata, Ahmedabad, Gurgaon or Noida.

Conditions required for the transfer of property to an unborn child

Section 13 of the Transfer of property act states the transfer of property to an unborn child as follows:“Where, on a transfer of property, an interest therein is created for the benefit of a person not in existence at the date of transfer, subject to a prior interest created by the same transfer, the interest created for the benefit of such person shall not take effect, unless it extends to the whole of the remaining interest of the transfer in the property."
Thus, it is essential to fulfill the below mentioned conditions in order to transfer the property to an unborn child:

  1. Absolute interest must be made in the favor of unborn child.
  2. Creation of prior life interest in favor of a person who has come into existence on the transfer date.

Pre-requisites for a valid transfer

  • No Transfer:A property can be transferred to an unborn child via trusts and not directly. If the trust in not present, then in such a case the property rights are created in the name of a living person and later transferred to the minor. 
  • Prior Interest:Till the unborn does not come in this world, the property rights can be enjoyed by the trustee or the person(s) in whose name the property is vested. 
  • Immediate transfer of rights:As soon as the unborn child takes birth, the property rights immediately gets transferred in his/her name. Post which he or she will be the sole owner of the property. 
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