Joe Thomas (Principal) 22 January 2017

Transfer of willed property to beneficiaries

Hello,
My paternal grandfather willed his property in Kerala to me and my brother. In the will he included a clause that our parents can use the property and the proceeds from it during their lifetime. My grandfather and my dad are no more. My brother and I would like to have the property transferred to our names but according to the village officer it may not be possible to do as long our mother is alive. Our mother wants to have this property transferred to our names. She is even willing to make an affidavit stating that she is willing to relinquish the use and proceeds from the property granted to her per the will and that she has no objections to the property being transferred to her sons' names. The property is still in our grandfather's name and tax is being paid under his name for the last 20 years since he passed away.
Kindly advice if we can have the property transfer done if my mother gives it in writing that she has no objections to the same and relinquishes the rights granted to her by the will.

Thank you

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5 Replies

Kumar Doab (FIN) 22 January 2017

The last wish of testator in valid WILL is supreme.

You may submit the certified copy of the WILL, death certificate of testator (owner) to the authority under whose jurisdiction property falls to act upon the WILL, and complete the laid procedure.

You may also submit death certificate of your father.

Let the mutation records be updated accordingly.

You may obtain latest mutation records.

Joe Thomas (Principal) 23 January 2017

Thank you for you reply. Just for clarification - You are saying that the mutation can be done in the land records i.e. the property can be transfered to me and my brother as per the WILL of my grandfather even though the WILL says that my parents (dad deceased, mom living) are entitled to use and proceeds from the property?

Also, we do not have the original registered WILL. It was with my grandfather and was possibly taken away (stolen) by close relatives along with the rest of his documents. What we have is a transcriptt that was ordered by a court from the registrar's office. Would the lack of the original WILL create a problem in the future when we try to sell the property?

Thank you!

Joe

Kumar Doab (FIN) 23 January 2017

You have posted that:

“Thank you for you reply. Just for clarification - You are saying that the mutation can be done in the land records i.e. the property can be transfered to me and my brother as per the WILL of my grandfather even though the WILL says that my parents (dad deceased, mom living) are entitled to use and proceeds from the property? Also, we do not have the original registered WILL. It was with my grandfather and was possibly taken away (stolen) by close relatives along with the rest of his documents. What we have is a transcripttt that was ordered by a court from the registrar's office. Would the lack of the original WILL create a problem in the future when we try to sell the property? Thank you! Joe”

How did you assume: it is not understood?

Have you shown all docs on record to a local counsel well versed with local laws and rules?

If yes what is the opinion of your own counsel?

Kumar Doab (FIN) 23 January 2017

“The last wish of testator in valid WILL is supreme. You may submit the certified copy of the WILL, death certificate of testator (owner) to the authority under whose jurisdiction property falls to act upon the WILL, and complete the laid procedure. You may also submit death certificate of your father. Let the mutation records be updated accordingly. You may obtain latest mutation records”

Once you complete the laid procedure the authority under whose jurisdiction property falls, shall do needful to act upon the WILL.

Once the WILL is acted upon the mutation records shall be updated as per details in the WILL, i.e. father and mother.

Kumar Doab (FIN) 23 January 2017

If the Original WILL (registered) is lost the certified copy issued by registering authority should be valid. You have succeeded in getting the certified copy by order of court.

The legal heirs are: as per personal law that applies in this case e.g; Indian Succession Act.

The authority under whose jurisdiction property falls, may ask for NOC from other legal heirs and/or to release advertisement in newspaper.

Even registered WILL can be contested; however registered WILL is not easily set aside on counts of authenticity.

If WILL is not contested then as per laid the authority under whose jurisdiction property falls, shall do needful to act upon the WILL and update the mutation records and you can get a copy.

If the WILL is contested it may land up in Probate Court of pecuniary jurisdiction.

If the WILL is not contetsd and is acted upon and/or Probate is granted the father's share shall also devolve as per contents of WILL.