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Joe Thomas (Principal)     30 March 2015

Probate of will

Dear experts.

I have two questions for your kind consideration:

1. My grandfather, a Christian resident of Kerala, had made a will bequeathing his properties to me and my brother. The registered will was challenged in court years ago by some of my relatives, but they lost the case and a subsequent appeal was denied due to delay in filing for one. Now years later, the property is still in my grandfather's name and even the property tax is collected in his name. We would now like to transfer the property title in the name of my brother and myself based on the Will. My question is: Do we need to probate the Will?

2. My mother, also a Kerala Christian, but a resident of  Maharashtra (Mumbai) for the last 50 years, owns a flat in Thane. She would like to make a registered Will per which the flat would be bequeathed to me. I know  my mom could execute a gift deed and the property can be transferred to my name immediately, but that would involve 2% stamp duty and Rs. 30K registration fee. I don't want to incur these charges and hence the thought to have my mom make a Will. My questions is: Would I need to probate this Will in the future after my mother's lifetime? 

Thank you!



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 10 Replies

SAINATH DEVALLA (LEGAL CONSULTANT)     30 March 2015

U have posed 2 queries, 1. Are U both only the 2 living legal heirs to UR grandfather.2. Are U the only living legal heir to UR mother's property

Joe Thomas (Principal)     31 March 2015

Dear Sainath: Below are the answers to your questions:

Q1. Are U both only the 2 living legal heirs to UR grandfather?

A. My grandfather, at the time of his death 20 years ago, was survived by his son ( my father - now expired), his second wife (now expired), and 4 daughters. 

Q2. Are U the only living legal heir to UR mother's property?

A. No. My mother has 3 other children

SAINATH DEVALLA (LEGAL CONSULTANT)     31 March 2015

U said 4 daughters to UR grandfather, are they by first wife or second wife's children. Even if they are second wife's daughters they are eligible for the share of the property to be received by their mother as UR grandfather married after the demise of UR grandmother.

Ur mother has three other children apart from U. How has she acquired  the property.

Joe Thomas (Principal)     31 March 2015

//U said 4 daughters to UR grandfather, are they by first wife or second wife's children. Even if they are second wife's daughters they are eligible for the share of the property to be received by their mother as UR grandfather married after the demise of UR grandmother.//

My Father was the first child of my grandfather born from his first marriage. He also had a daughter from his first marriage. After my grandmother's demise, my grandfather remarried and had 3 daughters from that marriage. The property in question was self-acquired by my grandfather. The fact that he made a registered Will stating that the property would be inherited by the sons of his son should make anybody else ineligible for a share, shouldn't it? Or doesn't the Will matter in this case? 

 

//Ur mother has three other children apart from U. How has she acquired  the property.//

The flat in question was purchased by my mother using funds that I had gifted to her. The flat was purchased in her name at that time as I was living overseas. 

SAINATH DEVALLA (LEGAL CONSULTANT)     31 March 2015

Unless U put UR entire problem in a single thread U cannot get the desired solution here. U are not only wasting UR time  and also the experts. U are just adding only when I am asking U, and dont forget that U R dealing with a legal matter. Any lapse from either side can aggravate the case negatively.

Joe Thomas (Principal)     01 April 2015

Sainath: In my original post I tried to provide everything that I thought was relevant. I didn't mean to prolong the post or waste your time by intentionally holding back information that I thought was relevant. You asked additional questions and I provided you comprehensive answers. I didn't quite understand why you got all upset. Thanks for your time

SAINATH DEVALLA (LEGAL CONSULTANT)     01 April 2015

Don't get irritated my friend, my intention was only to gather the total information, inorder  to give U the correct solution. 

Joe Thomas (Principal)     01 April 2015

Not irritated, just baffled. I believe your intention, please believe mine too. I am the one in need here and you are doing me a huge favor. I will not deliberately hold back anything that can help me get the best possible solution. Thanks, again

SAINATH DEVALLA (LEGAL CONSULTANT)     01 April 2015

I am not the only one to give opinion, but the opinions of all the experts have to be taken into account.

Adv Akhtar Ali Sheikh (Property Law Consultant)     25 April 2015

Land in Kerala - Probate the Will, make a transfer deed from the Executor named in the will to the beneficieries i.e. you both, approach the revenue officials for mutation.

Your Thane Flat - In Maharshtra I hear that now (very recent news) stamp duty on  gift deed amongst the relations is just 500 rupees. The GR has come but I have not seen it myself so I cannot vouch for it iwth certainty. So you can go for Will but if the flat in Thane comes under the Jurisdiction of Bombay High Court - the Probate will be Must.

If it does not still the Probate may be insisted upon by the society after her demises. In either case it is going to cost 1-2 lakh or so, so calculate the stamp duty now if the expenses are near about it you may go for gift deed if the GR of 500 rupees is not correct, if it is correct then opt for the gift route.


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