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Seema Gupta (abc)     13 January 2011

Probate of a Will

Dear all,

My father passed away in 2009. My elder brother and my mother initially claimed that he had passed away intestate without leaving behind a will.

In the beginning of 2010 they had asked me to sign an indemnity bond to transfer one property from my father's name to my mother's name and in the indemnity bond they had clearly mentioned that my father had died intestate. Incidentally, I refused to sign the bond and yet they transferred the property to my mother's name.

Now, over the past couple of weeks, my elder brother has been calling me up as telling me that they have "discovered" a will and that it needs to be probated. I have a feeling that this is a bogus will which they are producing to usurp all my father's property without giving me my just share.

What are my options right now? Can my brother probate the will without my presence or signature? What is the legal validity of such a will which has been produced so late?



Learning

 11 Replies

N.K.Assumi (Advocate)     13 January 2011

Why did they asked you to sign the indemnity bond? was it a probate bond with you as the administrator or executor of the will is a million dollar question in the matter.Just be cool and asked them to show you the will and verified the signature of your father and the witnesses and also try too find out whether it was registered or not. If there are witnesses in the will you have to approavh them and make an enquiry under what circumstances the will was executed.

raj kumar ji (LAW STUDENT )     13 January 2011

SEEMA JI ,PLZ CLEAR ALL THE THING IF UR BROTHER WANT TO THE FATHER PROPERTY TO THE MOTHER NAME WHY SHOUD U NOT AGREE FOR THIS .PLZ CHECK ALL THE DOCOUMENTS THEN GO AHED

CKRamanathan (Proprietor)     13 January 2011

What is probate of  a will ? How involved is the process ? Does it take too long ? How much is the stamp duty to be paid for probating ? Does it depend on the value of the assets ? There are too many questions. Can one throw some light on it ?

Seema Gupta (abc)     13 January 2011

Dear Assumi,

 

It was an affidavit-cum-indemnity bond for a tenanted premises which was to be transferred from my father's name to my mother's name. It was not anything related to me being the administrator or executor or beneficiary of the will since the bond given to me clearly stated that my father had died intestate. The indemnity bond mentioned that I would give my free will to transfer the property in my mother's name and that I had no objections to the matter. Incidentally, he insisted that I sign the bond in front of an advocate in the court to which I refused.

 

I had also suggested to him that instead of my mother's name alone, we should include all three names so that there is no conflict between us, but he refused for the same and then went ahead to get the property transferred without my signature and without even informing me.

N.K.Assumi (Advocate)     14 January 2011

Sorrry I am late. It clearly indicates that he is trying to do something indirectly which he can not do directly, that is by coming out with purported will of your father. Engage a lawyer and cracked that will and have the property as per the laws of your inheritance.All the best.

1 Like

Seema Gupta (abc)     14 January 2011

Thank you Assumi. But, how do I go about trying to prove that it is a bogus will?

 

I have been married for the past 30 years and I don't have any specimen signatures of my father with me right now. I had a joint account with my father in a bank. Would approaching the bank help me get his specimen signature?

Seema Gupta (abc)     14 January 2011

Also, what about the probate question of the will? Can he probate it without my signature and knowledge? I'm a little worried on that aspect because he's once already done something without my knowledge and signature in the past vis-a-vis the transfer of property in my mother's name.

 

Can you briefly tell me the normal procedure for a probate?

N.K.Assumi (Advocate)     14 January 2011

A Will must be attested by two witnesses who must witness the testator executing the Will. The witnesses should sign in the presence of each other and in the presence of the testator. You must have grounds to have a chance of successfully contesting a will. Unhappiness with the proposed distribution of property is not a valid ground. Valid grounds depend on the law and also customs,Incapacity, fraud, undue influence and duress are the most common grounds. Make all possible efforts to see your father’s specimen signature from the banks, letters of your father, etc, I am sure it will not be difficult for you to find out that, and if you fail try to trace out the witnesses in the will, who can depose the truth about the will. Here is the information on Probate.

General Information on Probate Proceedings

1.     Law normally dictates which courts administer estates or probate wills. It is generally in the jurisdiction of the court in the place of residence when the taxpayer died, however, more then one probate proceeding may be opened if the taxpayer owned property in more than one state.

2.     Specific details of  probate proceedings vary widely and must be followed explicitly.

3.     The following are actions commonly taken in probate proceedings. They cannot be generalized to apply in all circumstances. The existence of a will is the factor that most often influences a proceeding. The primary effect of a will is that it specifically names the party who will administer the estate and spells out how the estate property will be distributed after administration is complete.

4.     A person who died testate had a will, which typically appoints a fiduciary to handle affairs after the taxpayer's death. When there is a will filed with the court by the executor, after its authenticity is declared, the executor is authorized to:

A.   gather the assets,

B.   pay the debts of the deceased, and

C.   make distribution to the beneficiaries as specified by the will.

5.     A person who died intestate did not have a will. When there is no will, a court petition is filed requesting the appointment of an administrator. The court appoints an administrator and issues letters testamentary authorizing the administrator to:

A.   gather the assets,

B.   pay the debts of the deceased, and

C.   make distribution to the heirs as dictated by state law or ordered by the court.

6.     The revenue officer or the Registrar must determine from the probate records if the proceeding is dependent, supervised or formal.

7.     If the proceeding is independent, unsupervised or informal, then assets of the deceased are not under control of the probate court. Collection action may be pursued.

The law also allow for the distribution of assets without formal probate proceedings according to customs. For example, property may be transferred by affidavit and problems or questions may be handled by an administrative hearing. This is particularly true when most of the property is held in joint tenancy with right of survivorship or when there is only one heir.

1 Like

girishankar (manager)     14 January 2011

h mm

N.K.Assumi (Advocate)     15 January 2011

So, do we required specefic Legislation on Will and Gift?

Seema Gupta (abc)     17 January 2011

Dear Assumi,

 

I went and checked up at my parents' place for the will. In the will, they have left an amount of money for me upfront.

 

My father has clearly mentioned that after him the property goes to his wife, then to his son and then to his daughter-in-law and finally comes to back to my son after the death of all the above mentioned people (since my elder brother has no children). But, there is no clause restraining them from liquidating the above mentioned properties. Also, one of the properties listed in that is claimed by my brother as something my father has himself sold off (after making this will). On asking my brother as to whom the property has been sold to, he refrained from answering.

 

Is there any catch in this will? I am afraid that this may be an eyewash since there is no restraining order on them dealing with or liquidating the property. Since they want to probate this will, can I raise these objections during the probating? Or would there be any better avenue for me to raise my objections?

 

Also, if my brother decides to adopt a child tomorrow, what would be the validity of this will vis-a-vis my son?


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