Nomination is not a will: who actually inherits your flat

The form takes five minutes. The society hands it over when you become a member, you write a family member's name in it, and a great many people spend the rest of their lives believing they have decided who gets the flat. They have not. What they have done is tell the society who to talk to, which is useful and is a different thing entirely, and the difference has been the subject of litigation for decades.

What the two documents actually do#

A nomination is an instruction to an institution. You tell the co-operative society that on your death it should transfer the shares and the interest in the flat into a named person's name, so that the society has someone with authority to deal with, dues can be paid, and the building's affairs are not frozen. It is an administrative convenience and it is a good one.

A will is a disposition of property. It states who is to own what after your death, and it operates on the estate rather than on any one institution's register.

The confusion arises because the first produces something that looks like the second. The nominee's name appears on the share certificate, the society treats them as the member, and to every casual observer the flat has passed to them. The Supreme Court's answer is that appearances at the society's register do not decide title.

What the Supreme Court settled, and what it did not#

In Shakti Yezdani v Jayanand Jayant Salgaonkar, decided in December 2023, the Supreme Court held that the right conferred on a nominee does not grant absolute title to the subject matter of the nomination. The nominee is a trustee or custodian; the law of succession prevails; and a nomination cannot operate as a third mode of succession alongside testamentary and intestate succession.

The case reached the Court through company shares rather than a flat, and the reasoning is what travels. The Court's point was structural: nomination provisions exist so that an institution has a person to deal with and is discharged when it deals with them. They are not a mechanism for disposing of property, because disposing of property is what succession law and wills are for. That reading applies to a co-operative housing society's nomination in the same way.

What it did not do is make nomination pointless. The society is still entitled and obliged to act on it, and the person named still receives the shares and the interest. What they receive is possession and dealing authority, held for whoever is entitled under the will or the succession law. If those are the same person, nothing further happens, which is the overwhelmingly common case and the reason the distinction stays invisible for decades. If they are not, the nominee holds for the others, and the family discovers that a form somebody filled in at a society office does not settle what a family had assumed was settled.

An analogy: the locker and the letter#

Think of a bank locker held jointly with a trusted friend. The bank lets your friend open it after you die, because the bank needs somebody it can lawfully hand the key to and be finished. That access says nothing about who owns the necklaces inside. If you left a letter saying the necklaces go to your daughter, they go to your daughter, and your friend, holding the key, is obliged to pass them on.

Nomination is the key. The will is the letter. Families run into trouble when they assume the person with the key was also given the contents, and the person with the key sometimes assumes it too, which is where a decade of litigation between siblings begins.

Suresh and Kavita, and the flat with one name on it#

Suresh and Kavita (illustrative, as our stories always are) bought their retirement flat largely from savings, in Suresh's sole name for reasons of stamp duty, and filed a nomination in Kavita's favour at the society. Both understood the flat to be settled.

Their elder son raised the question at a family gathering, not aggressively but accurately: if his father died without a will, the flat would pass under succession law to his mother and to both children in equal shares, whatever the society's register said, and his mother would hold it partly for them. Nobody in the room had intended that. They had intended the flat to be Kavita's outright, and they had assumed the nomination did it.

What fixed it took an afternoon and a lawyer's fee smaller than one month's maintenance. A will was made saying what they had always meant, the nomination stayed exactly as it was because it was still the right instruction to the society, and the two documents now do the two jobs they were designed for. The uncomfortable part is that nothing had gone wrong, and nothing would have gone visibly wrong for years.

Joint ownership is a third question, not a shortcut#

Buyers often reach for joint names as the simple answer: put both spouses on the agreement and the flat passes automatically. It is a reasonable instinct and it is not a substitute for either document.

Joint ownership determines what each person owns during their lifetime and therefore what forms part of each estate on death. Whether a co-owner's share passes automatically to the survivor, or falls into that co-owner's estate to be distributed under their will or the succession law, depends on how the ownership was created and on the personal law that applies. Those are not questions the society's nomination form answers, and they are not questions a purchase agreement usually addresses in terms either.

The practical point for most families is narrower than the law. Adding a second name changes the stamp duty position, which is worth knowing before the agreement rather than after and is costed in joint ownership, tax and stamp duty, and it changes who must attend and sign at every future transaction, including a resale or a mortgage. It does not remove the need for a will, and where it is assumed to have done so, the discovery usually comes at the worst time.

If the flat is held jointly and the intention is that the survivor should have it outright, the way to be certain of that is to say so in a will, in the same afternoon you check the nomination.

What to do this month#

• Ask the society for a copy of the nomination it currently holds against your flat, and read it.
• If it names someone you would not name today, file a fresh one.
• Make a will, however simple, and say in it what should happen to the flat.
• If the flat is jointly held, understand how it is held, because that affects what passes at all.
• Keep the will where the family can find it, and tell someone it exists.
• Revisit both after any marriage, death, or serious falling out in the family.

Where the paperwork lives with everything else#

The nomination and the will belong in the same file as the registered agreement, the Index II and the share certificate, which is the set the family will need in one place at the worst possible time. That file is assembled during the purchase, in the twelve documents to check before buying a flat, and completed by the society transfer described in the share certificate and society membership. If the society itself was never properly constituted, the nomination has nowhere to sit, which is one more reason the first twelve months after possession matter.

The check that comes much earlier#

None of this is about choosing a flat, and everything in it assumes you own one worth passing on. The purchase decision has its own evidence base, and for a Maharashtra project the Rs 499 ReraGenie buyer report assembles it: the promoter's delivery record against their promised dates, the project's extension and complaint history, and the red flags on its current registration. Estate paperwork protects what you own; the filings decide whether owning it was wise. Read the project's free page first.

The one-line summary#

Nomination tells the society who to deal with, a will tells the world who owns it, the Supreme Court confirmed in 2023 that the first cannot do the second, and the fix for the overwhelming majority of families is one afternoon and two documents rather than either one.

This article is educational and not legal advice. Succession is governed by the personal law applicable to you, and a will is worth drafting with a lawyer who knows it.