Hello, my deceased father left a will in which my elder brother (let's call him brother A) and I get equal share of a flat owned by my father. He clearly mentioned in the will that our eldest brother (lets call him brother B) won't get any share in that property. Will is executed and registered in New Delhi. Our eldest brother (brother B) is not happy about this and he said he won't give us any NOC. Now, my brother (brother A) and I wants to sell this property. We enquired from some employee of the registrar office and he told us that we can get the property transferred to our name or some other party who would like to purchase this property on the basis of this will without any probate. We also consulted some lawyer and he said we can't sell this property without getting the probate order from the court. He further said that no nationalized bank will give the buyer loan even if we get the property transferred to our name. He said bank will insist for either NOC from brother B or we need to get the probate. No I have these questions: 1. Is it really necessary to get a will probated or get a NOC from a non-beneficiary to sell the property in question. As far as I know getting a will probated is not mandatory in Delhi. 2. Is it possible to get this property transferred/mutated to our name without getting NOC from our brother or getting the probate? 3. Will banks deny the loan to the buyer even if we can get this property mutated/transferred to our name or eligible to execute and register a sale deed in the favor of buyer. Any help will be appreciated.
Probate is not mandatory in Delhi
2) to sell the property consent of all legal heirs is necessary
3) you can apply for mutation of property in your names on basis of will but NOC from brother woukd be required
4) banks may not grant loan unless noc from brother is obtained or you get probate order from court
5) your lawyer has hides you correctly
The answer to your queries are as follows:-
1. In Delhi probate of Will is not mandatory.
2. Mutation in MCD is only for the purposes of payment of house tax and it does not derive any ownership.
3. It depends upon the lawyer of the bank. However, to safeguard the bank, NOC from hostile party is taken who can challenge the Will.
4. In my opinion, please go ahead with the prospective buyer and in the event such opinion is given by him, you may execute a Relinquishment Deed (RD) in favor of A or A execute RDin your favor. Registration of RD requires minimal stamp duty and registration charges. By virtue of RD one of you would become absolute owner of the property.
1. Probate not compulsory. But noc is compulsory
2. Same as above
3. Yes it will deny
1. Even though it is not mandatory to get the Will probated, NOC from other legal heirs of the deceased testator is essential without which you cannot get the property transferred to your name in the revenue records. If the property is not legally transferred to your name then you cannot derive title to sell the property.
Therefore if your brother refuses to give NOC you may have to approach court to get the Will probated in order to make you eligible to sell the property with clear and marketable title to sell the property..
2. The revenue department would insist you to obtain NOC from the other legal heirs in order to mutate the property to your names even if you claim yourselves as beneficiaries on the basis of the registered Will.
3. It depends on the panel lawyer of the bank that would be granting loan.
Dear Client,
Typically, you need the property ownership document and the Will, or the Will with probate or succession certificate. In the absence of a Will, you may also need to prepare an affidavit along with a no-objection certificate from other legal heirs or their successors. Although the probate of the will is not mandatory in all other cases, it is advisable to obtain probate in cases where there is a probability of the validity of the will being challenged on any grounds in the future. there are some banks which provide loan with out probate but you need to check with the banks. To transfer property, You will need the ownership documents, the Will with probate or succession certificate. NOC is not required as there is a will.
No it's not mandatory for delhi as per the provisions of law
1. There is no need to get the Will probated. Also there is no need to get any consent of a non-beneficiary.
2. Yes, it is legally possible.
3. No. Banks cannot deny a loan on these grounds.
- An unregistered will is valid document, if it conforms to legal requirement of two witnesses who have signed the will in the presence of the testator and the testator has signed the will in their presence.
- Hence, the Registration of a Will is not compulsory, and after the death of the testator, an executor of the Will or a heir of the deceased testator can apply for probate.
- Further, A probate is a legal recognition given to a Will regarding its genuineness and legality, declared by a competent court.
- So, for the execution of the unregistered WILL, and to distribute the properties as per WILL, you should file a petition for Probate the said WILL before the court.
- After getting the Probate decree, you can apply for mutation of the said property in the name of legal heirs, as given in the WILL.
1. Probate is needed , if there is dispute amongst the legal heirs , otherwise it is not necessary to get probated in Delhi , and further no purchaser will agree to purchase the property in the absence of a probated WILL.
2. Generally, in the absence of a probated WILL , mutation is not possible.
3. The bank can sanction loan if the property probated in your name.
