Probate of Will or Gift Deed?
Amit
(Querist) 24 February 2011
This query is : Resolved
We are 2 brothers, father and mother deceased. I lived with mother and father in mother's flat. Brother lived outside. Mother made a will and bequeath her flat solely to me.
Is probate of will the only option?
If brother gives his consent, can I go for gift deed (without citing the will) in which he gifts his share (as per succession act) to me?
Which is the cheaper and faster option?
A V Vishal
(Expert) 24 February 2011
Where are you from?
Amit
(Querist) 24 February 2011
Kolkata, West Bengal
A V Vishal
(Expert) 24 February 2011
A probate means a copy of the Will, certified under the seal of a competent Court with a grant of administration of the estate to the executor of the testator. It is the official evidence of an executor's authority. A probate is mandatory when the Will is executed by a Hindu, Christian or Parsi in the cities of Mumbai, Calcutta or Chennai, or pertains to immovable property situated in Mumbai, Calcutta or Chennai.
A probate granted by a competent court is conclusive evidence of the validity of a Will until it is revoked and no evidence can be admitted to impeach it except in a proceeding to revoke the probate. However, it only establishes the legal character of the executor and in no way decides the title or even the existence of the property devised. The grant of the probate decides only the genuineness of the Will and the executors right to represent the estate.
The grant of a probate is conclusive evidence of the testamentary capacity of the person who made the Will.
A probate is conclusive as to the genuineness of the Will and appointment of the executors.
Once a probate is granted, no suit will lie for a declaration that the testator was of unsound mind.
Probate is conclusive as to the representative title of the executor.
Under the Indian Succession Act, 1925, a probate can be granted only to an executor appointed under a Will. However, it cannot be granted to a minor, a person of unsound mind, or to association of individuals, unless it is a company that satisfies the conditions stipulated by the government.
A probate cannot be granted until the expiration of seven days from the date of the testator's death.
Amit
(Querist) 25 February 2011
Vishal Sir,
Thanks for your reply. Some of my friends are telling me to go for gift deed instead of probate. Can you please throw some light on gift deed? Is it faster than probate ? What about the monetary aspect?
M V Gupta
(Expert) 25 February 2011
You have stated that the flat belongs to your mother who is no more. Gift can be given by the owner of the property only. As the owner is dead, gift is not possible.
