Is probate grant mandatory
Mustafa
(Querist) 18 June 2018
This query is : Resolved
Purchasing a property,
Link doc shows ( unregistered will) property is inherited to two sons from thier father. Their father is no more..
But the will is neither registered nor notarized. Infact will is written on a plane paper dated 21/06/2011.
How to proceed is probate grant required?
Kumar Doab
(Expert) 18 June 2018
'Buyer Beware' applies to property deals.
It shall be appropriate to get proper legal opinion from a very able LOCAL senior counsel of
unshakable repute and integrity specializing in revenue/property/civil/DRT matters and well versed
with LOCAL applicable rules/laws and having successful track record…. and worth his/her salt ,
before signing or making payment.
This may cost some FEE but can defend long term interest and hard earned monies.
Kumar Doab
(Expert) 18 June 2018
Which personal law applies in this case ( for seller)?
Or are all title holder/testator/legal heirs; Hindu or Muslim…?
The said property is agricultural land, rural, Urban, or it is a building?
Who was 1st owner in Family tree; the deceased father or his forefathers?
The deceased father got the property from father’s or mother’s side?
The property is self earned/acquired/ancestral in the hands of deceased title holder/testator?
The said WILL is witnessed by 2 witnesses?
Is the said WILL valid and duly acted upon without any cloud on IT or probated?
Who are the beneficiary(ies) as in WILL?
As per your post IT is not clear who all and how many legal heirs the deceased father had including
mother, wife, sons, daughters?
The daughters were married?
The property is in which state?
Confirm!
Kumar Doab
(Expert) 18 June 2018
Succession opens on date of death; by inheritance or testamentary succession (in case of valid
WILL by deceased owner/testator).
You are to make IT clear that; If WILL exists then how come property is inherited by 2 sons…… The
property should devolve upon beneficiary(ies) as in valid WILL if WILL is duly acted upon without
any cloud on IT.
In case of Hindu male the 1st right is of ClassI legal heirs i.e. Mother (if alive as on date of death),
wife (if alive as on date of death), sons, daughters……
In case of deceased Hindu woman dying without disposing her estate/property in her life time by a
valid/registered deed ClassI,II is not applicable rather nature and source of property matters.
If the property is self acquired/earned/absolute in the hands of Hindu woman the 1st right is of her
husband (if alive as on date of death) and sons, daughters…………
If property is acquired from husband side and 1st right is of her sons, daughters…………and if sons
and daughters are not available then legal heirs of husband.
If property is acquired from parents side and 1st right is of her sons, daughters…………and if sons
and daughters are not available then legal heirs of father.
IT is mandatory to probate the WILL in the areas of Bombay, Calcutta, and Madras.
It is not mandatory to probate the WILL in the area of Delhi. It is not mandatory to register the WILL.
IT is not mandatory to notarize the WILL.
The WILL should just be valid. Unregistered WILL can be acted upon.
The last valid WILL ( even on plain paper /even if handwritten) prevails.
Kumar Doab
(Expert) 18 June 2018
The authority under whose jurisdiction property falls has a set procedure for such matters if NO
WILL has surfaced; Intestate Succession…….and the prescribed forms, procedure, process is
available in O/o Authority and even on website. Death certificates, legal heir certificate/affidavit (per
local procedure-precedence) are basic requirements. Then authority shall act upon and transfer the
ownership in the name of legal heirs. Obtain copy of updated mutations records showing share of
legal heirs. This grants rights equal to that of owner to legal heirs. All legal heirs are at liberty to
relinquish/release/transfer/gift/sell their share in anyone’s favor.
The authority under whose jurisdiction property falls has a set procedure for such matters if the
WILL has surfaced; Testate Succession…….and the prescribed forms, procedure, process is
available in O/o Authority and even on website. Certified copies of the WILL, death certificate, legal
heir certificate/affidavit (per local procedure/precedence) are basic requirements. The authority may
ask for NOC from legal heirs (other than beneficiary) and/or to release newspaper advt and/or may
write to legal heirs to submit their objections if any within set time.
If there is NO contest to the WILL by any legal heir then authority shall act upon the WILL without
any cloud on it and transfer the ownership in the name of beneficiary.
If WILL is contested it lands up in probate court of pecuniary jurisdiction. The court shall decide on
validity of WILL.
If WILL is not valid IT cannot be acted upon matter shall be decided by inheritance as per provisions
of personal law that applies.
The legal heirs may also consider perspective of registered family settlement after the WILL and
register it.
Check locally for compliance with procedure and obtain certified copies even if thru RTI. After due
compliance concerned official in the O/o Authority e.g; Patwari, shall act upon the matter and
transfer the ownership by inheritance/probate in the name of legal heirs in mutations records.
Thereafter obtain copy of updated mutation records.
For partition by boundaries legal heirs/beneficiary can either decide amicably (best recourse) or take
help of other elders of the family or panchyaat or court of law..
If WILL is not submitted to be acted upon then it becomes matter of succession per personal law
that applies.
Although it is wrong since the WILL exists.
Kumar Doab
(Expert) 18 June 2018
Check locally as suggested above.
The best is to get proper written legal opinion from a very able counsel as already suggested above.
Kumar Doab
(Expert) 18 June 2018
Same Query;
http://www.lawyersclubindia.com/experts/Is-probate-grant-mandatory--684266.asp
