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Rajib Choudhury   28 June 2022

Requirement of probate

My mother has expired last month .Now we have a flat at Kolkata which is jointly owned by my younger brother & my mother and my sister lives in that flat with her husband . My mother had in her will which is registered , mentioned that after her death her share of the flat be given to my sister . Now can my brother make my sister to vacate the flat and sell the same  . Also is probate mandatory if registered will is there  ,as making probate is a costly affair . Also Can probate be made at a later date as cost is too high . .Lastly  Can my brother sell the flat without my sisters consent, ignoring the will as probate is not there as of now  .pls kindly let know


 7 Replies

Rama chary Rachakonda (Secunderabad/Highcourt practice watsapp no.9989324294 )     29 June 2022

properties tobe distributed as per registered will with probate orders

SIVARAMAPRASAD KAPPAGANTU (Retired Manager)     29 June 2022

The property in question is an Apartment in the joint name of Brother and Daughter and Mother expired writing a Will (Registered) bequeathing her share to Daughter. So now, the Daughter becomes Co- the owner along with the Brother. Now the apartment is in the joint name of Brother and Sister. 

Brother cannot alienate the property without the consent of Sister as she inherited part of the apartment as per Registered Will. 

Kishor Mehta (CEO)     29 June 2022

In West Bengal a probate on a WILL is mandatory for transfer of an immovable asset. You beed to get the WILL probated. Younger brother can not sell the property without the consent of the sister. 

Anila Sabu   29 June 2022

Dear Querist, 

A co-owned property can be sold if both parties are willing to.
However, if your sister is unwilling to sell her half, your brother could sell his undivided share of the property as long as the buyer is prepared to buy in the manner described.

When two or more persons jointly own a piece of property, one of the owners MAY file a lawsuit or partition action to compel the sale of the property.

Furthermore, it should be noted that there is no legal provision requiring the taking of a probate for any registered will. The sole purpose of a probate is to confirm the validity of a will. A probate order is not usually required for a will.

Even though a probate is not there, the will in binding and so your sister is now a co owner of the flat. Hence, your brother can not sell the whole flat withut her consent. 

However, as mentioned above he can sell his share of the undivided property. 

Kishor Mehta (CEO)     29 June 2022

With due respect, a WILL has to be mandatorily probated in certain parts of India, West Bengal being one of these, to prove ownership of an immovable asset. Without this procedure any transfer or sale is unlawful and will be treated as null and void


Rajib Choudhury   29 June 2022

Can probate be done at a later date as hige cost is involved.  till then can it be as it is. Can my brother sell the flat in between taking advantage of sister not done the probate. Pls confirm 

Dr. MPS RAMANI Ph.D.[Tech.] (Scientist/Engineer)     03 July 2022

A probate on Will is mandatory in the metropolitan city of Kolkatta (not in West Bengal) .  A probate need to be taken only when there is a need to get the right of alienation of the property.  If a probate is not taken for a long time there is the risk of alienation of the property by default. I do not know whether the law of limitation would apply.  The brother can ask for a partition of the property. If the sister has cash, she can pay and settle his claim. Otherwise she will have to jointly sell the property and share the proceeds with her brother. In some States there is stamp duty to obtain a probate. It will be much less than the stamp duty for the sale of property. In order to ensure her right, the sister should not mind spending money to obtain a probate.


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