He cant rent. As there is no one to object he is doing that. The other legal heirs can approach court for share in rent if required

If your father has named your brother as the sole beneficiary in his Will, your brother is well within his rights to manage the flat and collect the rent, notwithstanding the fact that the Will is yet to be probated.

Your brother is relying on your father's Will and exercising his right as owner of the flat

however the Will is not yet probated

so your brother's position as of now is only that of a nominee

the share certificate is transferred to his name only in his capacity of a nominee

a nominee is merely a trustee for the legal heirs of the deceased

so whatever rent he earns he will have to account for half of that rent to you since until the Will is probated, your brother cannot claim exclusive right over the flat

if your brother refuses to share half rent with you, then you will have to sue him

Nominee is only trustee for legal heirs 

2) monthly rental income should be stated with legal heirs 

You have mentioned that your father had transferred the property to one of the brothers by a testamentary disposition, i.e., by bequeathing the same through a Will.

Thus as per the Will the said beneficiary becomes the owner of the property no doubt the Will need to be mandatorily probated in Mumbai being one of the Presidency towns.

However if the Will is genuine and there is no objection to the grant of probate by other legal heirs of the deceased testator, then the probate process if just a formality.

Since the property's share certificate has been transferred to his name, he can very well collect the rental amount on his name especially in the light of the property being bequeathed to his name by a Will.

If you suspect the genuineness of the  Will then you can raise your objections and also can file a suit for partition if the Will is not genuine and has been fabricated.

- As per law, the society is bound to transfer the share or interest of the deceased member to a person/s nominated, and if no such person is nominated then the committee of the society shall transfer it to such person as may appear to the committee to be the heir or legal representative of the deceased member.

- And further, the purpose of nomination is to make clear the person with whom the society has to deal upon the death of a member, and It does not create any interest in favour of the nominee, to the exclusion of those who are in law entitled to the estate of a deceased member.

- Further, the said nominee does not become the absolute owner of the property, and he is only empowered to hold the property in trust for the real owners for the purpose of dealings with the society, and further he has no power, authority or title to alienate the property to the exclusion of the other legal heirs of the deceased member.

- Hence, your brother status is just like a nominee, and he cannot transfer or mutated the property in his name , in the absence of consent from other legal heirs, including you. 

- Further, he cannot also give the said property on rent  without your consent, and hence you can claim rent equally. 

Probate is not mandatory for Christians 

however it is always advisable to apply for probate 

Yes being indian Christian you are exempted from probate even you stay or your property is in Mumbai

Your brother claims his right from the Will which is yet to be probated. If you wish to challenge it, you have to prove it has not been probated. In any case, unless the Will was executed under threat or mental duress, its validity stands, whether it was probated or not.

Even if probate may be optional, it will still be needed 

No probate is necessary for Christian and Muslim Wills. Section 213 of the Indian Succession Act,1925 was amended and the word Indian Christians was added. Thus, you do not need a probate of the will, you can claim the property on the basis of the will itself.

However  if any property or  securities of the deceased cannot be transferred then Probate is necessary.

Dear Client

- Yes, as per Supreme Court , no probate is required for Christians.