I have 2 qs both related to property. 1. The apartment we live in we bought 5 years back for 81 lakhs out of which father contributed 28 lakhs and rest all I did plus I paid all the legal fee, broker fee, stamp duty etc. which summed upto 92 lakhs. This property is in joint name of Myself and my father. My father is 80+ and has only 2 children -me and an elder sister married and settled in a diff city. I want to make a Will for my father so that I can get 100% of his share of the property so that I have exclusive rights to this property after him. Both Father and Sister ready for this and even asking me to do this soon as my father is ageing. Now My qs: If I make a registered will(that is Will is made and executed in office of Registrar, then after my father, will the whole right of father in property I will get and I'll have no problem selling it later? I don't want to go for gift deed since it will attract a huge amount of Stamp duty. What if I make a simple will and not execute it? (Also can registrar come to home to execute the Will citing old age of my father?) 2. We have a shop in my Mother's name and she is no more. How to manage this one? Shall I try to sell it during the lifetime of my father and if I try to sell it later after him, will that be more of an issue? 3. My father has some FDs in his bank account which I use online as he can't. Do I need to make a will for that too? Thanks
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you will have to apply for probate of will on father demise for apartment and bank accounts
2) probate is judicial proof that will is genuine
3) you can transfer transfer flat in your name and then sell the flat
4) probate is mandatory in kolkata
5) as far as shop is concerned get shop transferred in name of legal heirs then sell it . you have to apply for letters of administration if mother died intestate
The Will is a good idea but remember that when the Will shall be enforced, the other legal heirs have to give NOC to transfer the share of property in favour of the named beneficiary.
2. The property lying on mother's name shall devolve equally on all her legal heirs.
Hence for now your father and sister can execute a registered release deed relinquishing their rights in the property in your favour, after which you will become an absolute owner of the shop.
3. You can have a joint account on both the names which can be operated by E or S mode, so that you can utilise the balance amount after his lifetime without any problem.
1. Registration of WILL is not mandatory but only optional. Even an unregistered WILL will also have same legal validity as that of a registered WILL. Let your father execute a WILL naming you as beneficiary for his share in the apartment. There will be no problem for you to transfer 100% property rights over the apartment after your father's demise, based on your father's WILL. There will be no problem in future for you to sell the apartment single-handedly. Normally stamp duty for Gift Deed amongst blood relatives will be normal as in Karnataka around Rs. 7500/-. Private Attendance of the Sub Registrar can also be arranged wherein the Sub Registrar will visit the house of the Testator/Donor for executing WILL/Gift Deed.
2. Assuming that your mother died intestate ( without executing a WILL), her self acquired property (shop) would devolve equally to your father, your elder sister and you in 1/3rd proportion. Get the registered Relinquishment Deed executed by your father and your elder sister in your favour so that you can sell it alone.
3. Regarding FDs maintained by your father, it's he who has to execute the WILL in this regard and not you.
1. mere Will in your favour will not automatically transfer the flat in your favour after your father's demise. You will have to prove your father's Will after his demise by filing a probate petition in the High Court for which also you will have to pay court fee and spend on other legal expenses
secondly registering the Will is not compulsory by law. Your father can simply sign on the Will in front of 2 witnesses
2. your mother appears to have died intestate. so you will have to file a petition in the high court for grant of letters of administration for dealing with and administering the properties of your late mother. you will not be able to sell her property without the LA from court
3. yes the FD's should also be included in the Will [assuming your father wants to make a bequest in respect of the said FDs too]
My main concern re the apartment is, I have read Will needs to be probated in Kolkata so if I say I get the Will registered then is it still necessary to probate it? If yes, then is there any advantage of getting a registered Will versus a normal Will? Probating a Will also costs a lot, so isn't it a better idea to get a gift deed from father to me for his rights on this property?
it is necessary to apply for probate of will
2) The Supreme Court has said that mere registration of a Will would not be sufficient to prove its validity, as its lawful execution necessarily has to be proved in accordance with Section 68 of the Indian Evidence Act, 1872 and Section 63 of the Indian Succession Act, 1925.
3) gift deed during father lifetime is better option
You can make a will as far as every property is concerned. With regard to the apartment, you can add a specific clause regarding the expense done by your father, in will. This would in future be the best way, and after demise of your father the same would be in urs name on basis of the will. With regard to the shop owned by your mother, name of your father can be infused as her heir, and after that your father can include this property in will too. And evry other assets movable or immovable can be mentioned in will.
With regard to registration of will, kindly note Registered will would be comparative more usefull for getting probate. If there may be objection by other heirs. Or else a will can be registered, unregistered or even a simple write up in a paper, made in presence of two witness.
If you want to bequeath the same then will is necessary. You can pronate the same in state where it’s situated
1. As you have rightly mentioned the probate of WILL, whether registered or unregistered, is mandatory in Kolkata. However a registered WILL, if challenged, can be easily proved as genuine when compared to unregistered WILL.
2. I do agree with your idea to opt for registered Gift Deed to be executed by your father in your favour, for his share in the property instead of WILL.
As far as enforcing a Will is concerned it is mandatory to get it probated by a court competent irrespective of the fact that it is a registered or unregistered Will.
Instead of going behind arduous procedures to get the Will probated, you can better ask your father to transfer the property by executing a registered gift or settlement deed.
Registered Will is perfect attested by 2 witness.
Tell your father sister to execute release deed for shop or include this property also in WILL.
You can include every thing Will but probate is compulsory in WB which will be costly affair.
Better go for release deed.
1. Mere having a registered Will is of no assistance unless you get Probate of the Will for which consent of your sister would also be required.
2. If the shop was n your mother's name and on her death it belongs to all her legal heirs in equal share.
3. Yes
- Since, your father is ready for transferring his share , then he can register a gift deed in your name for his share to make you single owner of the property during his life time.
- Further, the other option is Will which will be executed after his demise , and it can be written in the presence of two witnesses ,and of one witness may be your sister
- However, if there will be a Will then before selling the property you will have to probate from the court and mutation is necessary, whereas in the case of gift deed no such formalities are required.
- Gift deed stamp duty is minimum if the parties are blood related.
2. If your mother has died intestate, then he shop will be devolved upon all her legal heirs equally and hence this shop must be transferred in the name of legal heirs before selling
3. Yes,
- Registration of Will is not mandatory
1. There will be negligible amount of stamp duty required for gifting property by father to son. However, unregistered will is also valid and when your sister has no objection, you can go for it wherein your signature will be the one of the witnesses.
2. If the shop is in your mother's name then it will be inherited by your father, yourself and your sister. You can make a settlement deed or release deed wherein your father and sister will release their shares on the shop of your deceased mother in your favour.
3. You can get your name included in those FDs as second holder and in that case you shall become legal owner of those FDs after the demise of your father.
1. Yes, Will executed for Kolkata property is required to be probated.
2. Even for unregistered wills for Kolkata properties, grant of probate will be required.
3. In the instance case, gift deed of the property is the best legal solution.
Dear client, you can sell the property later if you have made and executed the will. A will is only valid when the testator signs it in the presence of at least two witnesses.
OK I contacted a local lawyer for Gift deed and now the issue is in our original Deed only the Super built area is mentioned with no mention of carpet area but while generating query she said she had to include a carpet area(see approximated as 25% less on super built) as she says its now mandatory to include carpet area and without that the query was not getting submitted. Now my qs: 1. Is it ok to include an estimated Carpet area(alongwith the superbuilt area) while generating query even though no original deed only mentions Super built area? 2. Is it possible that we exclude the carpet and area in the gift deed and only mention the super built area even though she had to mention it in query? 3. Is it fine to mention in gift deed my father is transferring half of the super built area of flat(his share) as I jointly hold the flat with him. Thanks
you can mention the super built up area and carpet area of the flat
2) you cannot mention only super built up area
3) it cannot be mentioned that father is transferring only half of super built up area .
4) ideally deed of rectification has to be executed in original deed to mention carpet area of flat
1. No, carpet area cannot be included out of your own estimation, whatever you do, it should have relevance to the original or the parent document without which any amendment to the schedule of property will render it invalid,hence the original title holder has to rectify the same
2. Without the carpet area, the schedule of property may not be considered as legally valid which will render the transfer of property itself as invalid.
3. He can transfer his share in the property by executing a registered gift deed after which you can as the original owner to execute ta registered rectification deed rectifying the noted defects.
Dear Client,
Including an estimated carpet area along with the super built area in the query may be necessary to comply with local regulations or requirements. While the original deed may only mention the super built area, if the local regulations require both super built and carpet area to be specified, it might be necessary to include an estimate of the carpet area. However, it's essential to ensure that any estimates provided are accurate and clearly disclosed as approximations. It's generally advisable to adhere to the requirements specified for submitting queries, as failure to do so might result in rejection or delays in processing. If the lawyer had to include the carpet area in the query to meet regulatory standards, it might not be feasible to exclude it in the gift deed without potentially facing complications or non-compliance issues. It's possible to mention in the gift deed that your father is transferring his share of the super built area of the flat to you, especially if you jointly hold the flat with him. However, it's crucial to ensure that the language used in the deed accurately reflects the terms of the transfer and complies with legal requirements.
1. Since the original deed only mentions Super built-up area and not the Carpet area, desist from including estimated Carpet area in the Gift Deed.
2. Yes it's possible to mention only the Super built-up area in the Gift Deed excluding the Carpet area.
3. It would be fine to mention in Gift Deed that your father is transferring his entire entire share amounting to 50% to you in the jointly owned flat.
Yes you can do that but the area you mention should be accurate. Nowadays you need to mention carpet area only as it’s a law