Hi, I am a 40 yr old male and currently in USA with NRI status. Recently I have bought a flat in Mumbai in joint ownership with my Father & mother. Sales deed has 3 co-owners - myself, Father and mother. I have one brother who resides in Hongkong and is also with NRI status. As per family arrangement, we have decided that I will be inheriting full rights on this flat after my parents and my brother or his family will have no claim on it. My parents are planning to create a WILL where my father's rights in flat will be transferred to my mother after him and vice versa, and both their rights will be transferred to me after them. My query is how should we formulate this family arrangement so that my brother or his family does not claim any rights on this flat in future and also I don't have to approach them for any signatures after my parents in case I need to sale the flat. Does Parent's WILL alone will suffice this or we need to do any other paperwork. Incase we have to do any legal paperwork, can that be done without myself or my brother having to travel to India Key objective is to safeguard my full rights into that flat after my parents and not having to approach my brother or his family for any NOC / signatures to sale the flat or transfer share certificates from my parents name to me in the society.
Apply for probate of will on parents demise
2) probate is judicial proof that will is genuine
3) your brother can object to grant of probate
4) if he contests testamentary petition would be converted into testamentary suit
5) best option is for parents to execute gift deed during their lifetime
Your father can make a Will in which he will say that his 1/3rd share in the flat will go to his wife after him and if she predeceases him then to you
Your mother also should make a similar bequest as above in favour of your father and if your father predeceases her then the 1/3rd share will go to you
Let your brother sign as an attesnting witness in both the Wills
Also in the Wills it is to be stated that this flat was purchased by you from your own funds, however the parents names was added for convenience and out of respect in the sale deed
Parents Will have this flat going to me and other jewellery / savings getting distributed to both of us equally. With that my brother will also become one of the beneficiery of the Will. I have an understanding that the beneficiery shud ideally not be witness. Also I do not want to depend completely on Will and later worry on grant of probate etc ... Outside of Will , is there any paperwork that I can have my brother do by which he releases his rights of claim etc on that flat ? Will that be good enough to have society transfer the share certificates / sale of property after my parents ? What shud be done today to safeguard the rights and not leave for the future ?
Beneficiary cannot be witness to the will
2) your brother has no share in flat during parent lifetime
3) only on parent demise can he execute gift deed or relinquishment deed
In case your parents are bequeathing the proeprty by a Will making you as the ultimate beneficiary after their lifetime, then in that case while enforcing the Will, you may have to obtain NOC from your brother, if he is not alive at that time then from his legal heirs.
The revenue authorities may not entertain the mutation application without obtaining NOC from other legal heirs of your deceased parents to transfer their share in the property to your name. In that event if he do not cooperate then you may have to approach court with an application seeking probate of Will after which you can get their share in the property transferred to your name
If you want to avoid this unpleasant situation tht may arise in the future you may better get a conditional registered settlement deed executed by both in your favor for transferring their share in the property to your name after their lifetime and that they would be enjoying the property till their lifetime, which is called as life interest.
The suggested conditional registered settlement deed that may be executed now would be valid for ever and your brother nor anyone can dispute this neither at this time or anytime in the future.
The best option before you to safeguard your interest in the flat is to go for the suggested conditional registered settlement deed in your favor duly executed by your parents.
This will prevent your brother from taking any legal action in future with regards to any rights or for a share out of your parents' share in the property.
1. Let all your family members consisting of your parents, you and your siblings, enter into a Family Settlement Deed in which clearly the reason for bequeathing by your parents their individual share in the joint ownership of the property only in your favour after their death can be reasonably mentioned.
2. The fact mentioned in the Family Settlement Deed can be justified by your parents while executing the WILL.
3. In the alternative, after your parents' death, let your siblings, including your brother, execute a registered Release Deed in your favour, to make you sole and absolute owner then.
Thanks on suggesting conditional settlement deed option. Couple of queries on that - 1) Flat ownership will continue to remain on 3 of us and after both parents demise i can use that conditional settlement deed to transfer the complete ownership on my name including society share certificates etc. Pls confirm 2) conditional settlement deed - does it require my signature or only parents signatures. In case my signature are required then do I have to travel to India or is there way to do from being abroad 3) who keeps the original copy of that deed - my parents or I have to keep
1. Yes, you can use the registered conditional settlement deed to transfer complete ownership in your name, including society share certificates, etc. ,after your parents ' demise.
2. By your providing POA to one of your blood relatives, you can avoid visiting India for executing the registered Family Settlement Deed.
3. You can keep the original of the deed.
Parents can execute conditional gift deed or settlement deed for their share in property
2) on parents demise you would be absolute owner of property
3) it should be executed by donor (parents) and accepted by donee (you )
4) you can keep original settlement deed
1. The legal fact is that the property will be transferred to your name with effect from the date of the execution of the registered conditional settlement deed, however they will continue to enjoy their share of property till their lifetime.
2. You have to accept the gift by signing the deed, of course you can get it done through a power agent on your behalf.
3. You can decide about it by discussing among yourselves, whereas legally they have to retain it till their lifetime and you can have a certified copy till then.
1. Yes
2. All of you who are parties and legal heirs
3. That's your internal matter
Dear Client,
Thankyou
Nobody is interested in your ratings
The rule that the beneficiary and witness cannot be the same person does NOT apply to Hindus
Instead of a settlement deed, you can also explore a conditional gift deed which will immediately transfer the 66% share of your parents in your favour
The condition in the gift deed would be to the effect that so long as the parents are living they are entitled to reside in the flat despite the transfer of their shares to the son by gift
So if the 66% share is transferred in the lifetime of the parents only then that will avoid any future issues
Your brother can sign on the gift deed as a witness so that he cannot challenge the gift deed in future on the ground that it was made to be signed by the donor under some undue influence or misrepresentation
The registration formalities of gift deed on your behalf can be done by a POA holder appointed by you
I dont understand if people already have certain 'understanding' of a matter and they are so sure about it then why do they even ask queries. Your understanding that the witness and beneficiary cannot be the same person must be from some google search and NOT from the Indian Succession Act, 1925. I could have shared and explained that entire provision which excludes that rule for Hindus but I really dont want to waste my time when people have some fixed understanding of the matter.
1. Both your parents should execute a will bequeathing there shares of the flat in your favour giving living right to each other i.e. your father's portion can be lived by your mother and vice versa.
2. Even after there demise you shall have to obtain probate of the said property for which your brother shall have to be sent with the copy of the application of the probate to enable him to contest the application, if he so desires.
3. If your parents register a gift deed in your favour conveying their shares of the said flat in your favour, then only you shall have full right, title and interest on the said flat.
1. Gift Deed/Relinquishment Deed or Settlement deed can be registered conveying the title of your parents share of the flat in your favour.
2. The Society should transfer the share in your favour based on such title deeds registered in your name.
1. A clear settlement deed registered involving all the assets of your parents settled between your two brothers should entitle you to obtain the share certificate of the flat from the Society.
2 You can make three original settlement deeds typed on three stamp papers and should mention in the settlement deed that it has been printed on three stamp papers bearing the stamp paper numbers & who will hold which copy of the said deed menting the relevant stamp paper number.
3. The original of the registered deed can be held by your parents which also should be mentioned in the settlement deed.