EXECUTION OF WILL IN ABSENCE OF EXECUTOR
Saptarshi Paul
(Querist) 22 December 2010
This query is : Resolved
Mr X was died on Sept 1989, he had three son & three daughter, he had made one unregistered will drafted by an advocate in july 1989 where bequeathed all his properties 50% to Elder son(son-1) and remaining 50% to his younger unmarried daughter (daughter-3) and he also mentioned that after the marriage of her younger daughter (daughter-3) this 50% share of younger daughter(daughter-3) will transferred to youngest son (Son-3), it was also clearly mentioned that his second Son (Son-2) has no right on property but he had appointed his Second Son (Son-2) as the sole executor of his will and directed him to obtain probate in this regard.
The First Son (Son-1) was also died on Oct 2006, and youngest daughter also married. And Son-2, Son-3 also settled outside State and they have no interest on this property as well as other daughter as they all are financially very sound.
So Now the wife of deceased Son-1 wants to transfer the name of the property which is still in the name of Mr X , in her name.
Kindly guide me what procedure i should follow in this regard, Property is situated in Assam
Regards
Devajyoti Barman
(Expert) 22 December 2010
First probate of the Will have to be obtained and thereafter only the mutation of the property in the name of the respective beneficiaries could be processed.
Saptarshi Paul
(Querist) 22 December 2010
Thanks a lot for your advice but
No-1
as the executor of the will is not present in the state , then who will apply for probate and is it necessary to obtain Power of attorney or simply an Affidavit from the executor who is residing at delhi,
No-2
As the one of the Heir as mentioned in the will (Son-3) is not interested in property then how and what type of document should be prepared to show his consent that he has no objection on such property
regards
s.subramanian
(Expert) 22 December 2010
You can obtain power of attorney and file the probate proceedings . There is no bar.
The heir (son 3),who is one of the legatees under the will has to release his rights over the properties by executing and registering a release deed in faovur of oothers.
Guest
(Expert) 22 December 2010
(1) Firstly, any beneficiary shall send a notice to the Executor (Second son) asking him to come forward and execute the Will by fixing a time-frame.
(2) Second son is bound to perform the Testator's Command. Otherwise, any beneficiary can set the law in motion and move the High Court for execution of the Will. The High Court will cause a notice to the Executor. If he doesn't turn up, the Court has inherent jurisdiction to step into the shoes of the Second son and do justice in handing over the property bequeathed to the petitioner-beneficiary and all others concerned.
Saptarshi Paul
(Querist) 23 December 2010
thanks to all experts but i need few more advice :-
As per s.subramanian sir's view, that The heir (son 3),who is one of the legatees under the will has to release his rights over the properties by executing and registering a release deed in favor of others. but again stamp duty will be paid for the share of Son-3 and again to get succession certificate stamp duty have to pay for whole property. Is not it costly, Simply obtaining NOC by way of Affidavit from said Son-3 is not enough ?
kindly tell me what amount of stamp duty should be necessary for RELEASE DEED is it similar to Sale/ Gift deed.
Regards
