Ram V (N/A) 13 March 2011

I have a Registered Will. What do I need to do now ?

Hi,

My mother died in 2005 & left a Registered Will indicating that the house should be given to me because it was built with my money.

My 2 sisters have signed as witnesses & they have no objection.

My brother lives in the house & do not want to give procession to me despite several requests from my mother when she was alive & by me after she died. I have the Registered Will in my procession but I have not shown it to my brother & have not taken any action because he is hot tempered & terrorizes everyone in the family. I had to leave the house because of his constant emotional & financial abuse. I am living in a rented apartment for last 10 years.

I went to city survey office & found out that the ptoperty is still in my mother’s name & property tax is still in my mother’s name & my brother pays it now but I was paying it while I was living in the house.

Can some experts please tell me the procedure of executing the Will OR say transferring the property in my name step by step ?

What forms do I need to fill & which offices etc do I need to go to ?

Also how long does it take to transfer the property in my name & how do I get him out of the house after the house is transferred in my name ?

The property is in Gujarat.

Thank you all.

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3 Replies

Dr. MPS RAMANI Ph.D.[Tech.] (Scientist/Engineer) 13 March 2011

You have not stated where and whch part of India the property is situated. The procedure would depend on that. Has your mother nominated an executor of the will in the Deed? In most parts of the country the executor will have to obtain a probate from a magistrate. A probate means a certificate that the will is genuine. After you obtain the probate you will have the legal right to get possession of the property from your brother.

Ram V (N/A) 14 March 2011

First Thank You Dr. Ramani for taking interest in my post.

The property is located in Gujarat State. According to Indian Law a Probate is not required in State of Gujarat. So spending a lot of Money & time for a probate is not going to help because even after the probate I will have to file a suit to get the pocession.

Alternately I have a choice of transferring the property in my name first thru legal channels which will cost me very little & then file a suit for pocession of the property.

So either way I have to file a suit to get the pocession.

But right now I need to know the procedure for transferring the property in my name & any help would be greatly appreciated.

Also if there are any provisions in Indian Law for an NRI, that would also help because I think Indian govt has taken some steps to help NRIs whose property is snatched by thugs so any help with any new Laws in that matter would also be of great value.

The Will does not say who the executor should be but my mother had given me the pocession deed ( In Gujarati it is called "Kabja Rasid " ) while she was alive.

She had also given me the power of attorney when she was alive. I don't know if any of those two documents be of any help.

Hope this would clarify things to help me better.

Thank You.

Originally posted by :Dr. MPS RAMANI Ph.D.[Tech]

Dr. MPS RAMANI Ph.D.[Tech.] (Scientist/Engineer) 15 March 2011

Your problem is mainly because your brother is staying in the house. You are saying that the house was constructed with your money and your mother has stated that in her Will. Have you got any other proof to show that you paid for the construction of the building? Is it an independent house? What about the ownership or your title for the land? Have you got past documents with regard to sale deed sale deed for and ownership of the land? In whose name does it stand?

When an application for a probate is made, the concerned authority will call for objections, if any, from other possible claimants. If your brother stakes his claim, the authority may accept or reject it, depending on the basis of his claim. If they rejects his claim, then the house will be yours as per the will.

In States such as Kerala, where also no probate is required, a house can be sold merely on the basis of the will and past documents only. I do not know whether the situation is same in Gujarat also. In any case a purchaser can ask for further proof other than the will.

What I would suggest is that you consult a lawyer and give notice to your brother to vacate the house and find out how he responds. From whatever you have stated it may be a long process to get him evicted.

You can make an application to the Municipality and electricity authority to get the documents with them transferred to your name. You can go to their office, show the will and ask them what forms and documents they need for the transfer. If the documents are transferred in the Electricity department, liability for payment for power consumption will become yours. But if you do not pay and your brother does not pay either, they will cut the power supply and only your brother will suffer.