My parents have willed their self acquired flat to me but only for residing and not for sale or mortgage or gift. Tomorrow if the society goes for redevelopment can I give the consent in writing to society allowing the redevelopment and take a cheque or a redeveloped new flat as compensation ? Also the will is typed and not notarized or registered, will it suffice ? Also what is the procedure of getting the ownership of the flat in my name after their death ?
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During your parents lifetime your parents consent is necessary for redevelopment and they would get possession of flat on redevelopment
2) will takes effect only on demise of parents and can be revoked by parents during their lifetime
3) cheque if any would be issued to your parents only
My question is if the society goes for redevelopment after the death of my parents then in that case can I give the consent in writing to society allowing the redevelopment and take a cheque or a redeveloped new flat as compensation ?
It is necessary to peruse the will to advice
will must contain a clause that during your lifetime you would be able to enjoy the property, give premises on rent ,take compensation in case society goes for redevelopment
1. You third question, “Also what is the procedure of getting the ownership of the flat in my name after their death ?” indicates that parents who have executed will bequeathing on you right to reside are alive. A will takes effect only after the death of executor of will. During the life of executor will cannot be enforced. 2. A will can be executed on any paper. It is executed on stamp paper so as not to create any doubt about date of execution of will. Will can be registered or un-registered. An un-registered will is as valid as registered will. It can be hand written or typed. The only condition that it should he signed by testator and attested by two witnesses who saw him signing the will. 3. If there are no legal heirs apart from you, property can be transferred in your name by Society by transferring share certificate in your name.4. Only after your consent redevelopment can take place and you are the one who is entitled to receive compensation amount.
I have a brother and a sister as legal heirs but the flat is willed in my name. In that case what is the procedure of getting the ownership of the flat in my name after my parents death ?
You have to apply for probate of will
2) probate is judicial proof that will is genuine
3) if your siblings object to grant of probate it gets converted into testamentary suit
My siblings are not going to contest or challenge the will and I am in Pune Maharashtra where it is not necessary to probate a will. Am I still required to probate the will ? What are the other steps in transferring the title of the property willed to only me by my parents in my name ?
In Pune probate is not mandatory but always advisable to apply for probate
apply to society to transfer flat in your name
enclose noc of other legal heirs
Property is bequeathed for limited right of “only for residing and not for sale or mortgage or gift.” In the first place, unless property is bequeathed expressly to be transferred to the legatee, he cannot become owner. Such legatee as you, will only have life interest to reside the property. As there is categorical bar against transfer by sale or gift, the intention of testator is expressly against absolute transfer of property to you. Secondly, you right to even reside is not yet matured, testators being alive. Dear client if the property gets inherited by you then in that case you can work similar to your parents for that particular property
No need to probate it.probate in above case will increase your chances for sale in future
It appears that you have been given only a life interest in the flat and NOT an absolute interest
That means till the time you are living you can live and reside in that flat
So after the demise of your parents your siblings cannot claim any occupancy right in the flat till you are alive
As no absolute bequest is made in respect of the flat, it will devolve by intestate succession to you and your siblings each having 1/3rd share in the flat
So after your parents' death you will have 1/3rd undivided share in the flat and absolute right to live in that flat exclusively for your lifetime
Your siblings would have a vested right of 2/3rd undivided share in the flat and their joint occupancy right would be delayed for the time you are alive
As there is no absolute bequest in your favour, when society goes for redevelopment, the consent/noc has to be given by all the 3 legal heirs
The new rehab flat will be jointly allotted to you and your siblings, however you will have the exclusive right to reside in the new flat for your lifetime. However your siblings 2/3rd undivided share in the new flat will already be there
If your siblings are willing then they can release their respective 1/3rd share in the flat in your favour by registering a release deed
So if you have a registered release deed from your siblings, you will become the absolute owner of the flat and wont require to probate the Will
However the society or the builder may require you to submit a legal heirship certificate or a LA to ensure that your title to the flat is clear
- Since, your parents have willed their self acquired flat to you only for residing and not for sale or mortgage or gift , then during the life time of parents you cannot give your consent to the society for the redevelopment and even not get compensation in that regard .
- Further, after their demise , the property would be devolved upon all the legal heirs equally , as you was having only right to stay in the property and not to do any transaction.
- However, if those conditions are for their life time , and there is mentioned that after their demise you will have right to transfer or dealing the same then you can do the needful as required without taking consent of others.
Since your parents are living, the Will cannot be considered for any reason or the contents therein.
In case of redevelopment, the redeveloped flat will be allotted in the name of your parents alone and not on your name and if at all any cheque to be given, it shall be handed over to them alone during their lifetime.
The Will shall come into force only after their lifetime and the Will can be valid only if the testator and the attesting witnesses (Two) sign in all the pages of the Will, the Will need not be registered or notarised.
The Will can be modified or cancelled anytime during the lifetime of the testator.
The Flat will be allotted in the name of the original owner, you have to prove your title by producing the Will (mostly the probated copy) to acquire the redeveloped property.
If the Will states that you cannot sell or transfer the property by any means then you cannot get the consideration amount in lieu of the property especially on the basis of Will.
Therefore it is pertinent to include the recitals authorising you to alienate with the bequeathed property in that manner or in any manner.
You have to get their NOC to enforce the Will and get the proeprty records transferred to your name on the basis of the Will after the death of the testators.
It is not mandatory to get probate of Will if the property is situated in a place other than the three presidential towns i.e., Mumbai, Chennai or Kolkata.
In that case you may have to get NOC from other legal heirs of the testators and apply for transfer of revenue and other records in your name in respect of the bequeathed property.
You may have to go for probate of Will only if the other legal heirs challenge the Will or refuse to give NOC.