Registering and probating a will
Mani S
(Querist) 08 July 2018
This query is : Resolved
I am writing a will combining my immovable properties in different states and my investments.
My questions are
1. can I register it at the nearest registration office to my present address?
2. Can I probate it in the nearest court to my present address?
3. If there is a property in a metro, is it necessary to probate it in a court there?
4. Who should do the probating - whether myself as the executor or the beneficiariies of the will.
5. What is the probating process?
Thank you
Vijay Raj Mahajan
(Expert) 08 July 2018
The Will can be written and registered by you anywhere you are living for all the properties and investments anywhere.
The probation of Will takes place only after your death by the person whom you name as executor in the Will at the district where the Will was written and registered. The executor of the
Vijay Raj Mahajan
(Expert) 08 July 2018
The Will can be written and registered by you anywhere you are living for all the properties and investments anywhere.
The probation of Will takes place only after your death by the person whom you name as executor in the Will at the district where the Will was written and registered. The executor of the Will can even be the one of the beneficiaries named in the Will. The civil court shall probate the Will.
Kumar Doab
(Expert) 08 July 2018
You have posted a good query and drafted properly to express your intent.
Which personal law applies in your case say; Hindu?
The properties are at which location?
Kumar Doab
(Expert) 08 July 2018
You may approach the registering authority nearer to you, where you are living.
IT is felt that Indian court have not decided on ‘Ante -Mortem’(Before death, Living Probate). The WILL operates after death of testator.
IT is mandatory to probate the WILL in the areas of Bombay, Calcutta, and Madras.
It is not mandatory to probate the WILL in other areas. It is not mandatory to register the WILL.
The WILL should just be valid. Unregistered WILL can be acted upon.
The last valid WILL prevails.
The executor or beneficiary may submit the WILL to act upon the WILL.
If executor does not come forward to execute his/her responsibility beneficiary can come forward and approach authority/court..
It is better to mention more than one executor, beneficiary…and draft the WILL carefully.. with proper recitals..
The probate of the WILL is required as above or if WILL is contested.
If contested WILL lands up in probate court of pecuniary jurisdiction.
Kumar Doab
(Expert) 08 July 2018
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.
The legal heirs may also consider perspective of registered family settlement narrating the WILL in IT and register it. This shall leave NO scope for further litigation.
Ask to check locally and comply with procedure. Thereafter 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 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.
Ask executor or beneficiary to check locally and comply with procedure.
Kumar Doab
(Expert) 08 July 2018
IT shall be appropriate to get proper legal opinion from a very able LOCAL senior counsel of unshakable repute and integrity specializing in testamentary/civil matters and well versed with LOCAL applicable rules/laws and having successful track record…. and worth his/her salt.
You may also discuss the scope of Registered Family settlement deed, conditional gift deed, settlement deed with life rights…………..and compare with WILL ..
In any deed/WILL that you may chose, proper recital can defend your long term interests..
Kumar Doab
(Expert) 08 July 2018
There are many threads on similar queries that you can search option in Threads Articles
e.g; Article under my profile;
Now, Property Transfer Deed by Senior Citizen Parent to negligent children can be revoked even if there is NO recital of Welfare Clause in the Transfer deed !
http://www.lawyersclubindia.com/articles/Now-Property-Transfer-Deed-by-Senior-Citizen-Parent-to-negligent-children-can-be-revoked-even-if-there-is-NO-recital-of-Welfare-Clause-in-the-Transfer-deed--8521.asp?utm_source=article_mailer&utm_medium=email&utm_campaign=article_followup
http://www.lawyersclubindia.com/forum/Digital-will-vs-registered-will-178876.asp
http://www.lawyersclubindia.com/experts/what-happen-if-beneficiaries-of-will-predeceased--663796.asp
http://www.lawyersclubindia.com/experts/Execution-of-will-681671.asp
Central Government Act
Section 105 in The Indian Succession Act, 1925
105.
In what case legacy lapses.— (1) If the legatee does not survive the testator, the legacy cannot take effect, but shall lapse and form part of the residue of the testator’s property, unless it appears by the Will that the testator intended that it should go to some other person. https://indiankanoon.org/doc/1535476/
and you can pick up the relevant points and decide in the best possible manner as suitable to you.
Mani S
(Querist) 08 July 2018
Thank you Mr. Vijaya Raj Mohan and Mr. Kumar Doab.
I am Hindu and I presume Hindu Succession act shall apply.
I propose to bequeath immovable properties to individuals and the investments to HUF. What then is the probating process? The clarifications offered by you implies that if there are properties in Delhi Bombay Chennai then the will is to be probated there. Does that mean that if the property is somewhere else it need not be probated. If there are properties in the said 3 metros plus in other places how and where to probate? How long is the probating process.
Dr J C Vashista
(Expert) 09 July 2018
Bad question paper.
Will can be registered at either of the place.
Probation of a will has to be moved by beneficiaries after death of testator.
