• Inheritance

Our house was in our mother's name. After my mother died without a will, we filed an affidavit to transfer house in our father's name. My father died recently. Can my make a will for this property? If no will exists, how will the property be divided?
Asked 6 months ago in Property Law from United States
Religion: Hindu
By way of affidavit on titles passed to your father.
So even of your affidavits your father did not become sole owner of the house.
So on death of your parents his legal heirs- sons and daughters get the equal undivided share in the house,
The Will if any by your father shall have no legal fore.
Devajyoti Barman
Advocate, Kolkata
5248 Answers
54 Consultations
4.9 on 5.0
1) On mother demise property would devolve on your father and the children 

2) if children have relinquished their share in property father would be absolute owner 

3) if father executes will property would devolve on beneficiaries as per will 

Ajay Sethi
Advocate, Mumbai
23367 Answers
1224 Consultations
5.0 on 5.0
1. Since your parents died intestate(without executing WILL), the share in the property would devolve equally to all their children.
2. In other words, assuming that you have 3 siblings, apart from you then the share in the property would be to the extent of 25% each.
Shashidhar S. Sastry
Advocate, Bangalore
1242 Answers
59 Consultations
5.0 on 5.0
Ideally your mother must have made a WILL as the property originally stood in her name, she died intestate, after her death with the consent of the other LR's the property came to be transferred into the name of your father, now during his lifetime he ought to have left a WILL behind, but unfortunately he also died intestate. the legal heirs can enter into a family partition deed mutually and get this document duly registered in the office of the sub-registrar, where the property or properties are located. If any one member objects to this kind of partition, the others can file a partition suit before the jurisdictional court and seek for their share in the said property or properties as the case may be.
Kiran N. Murthy
Advocate, Bangalore
766 Answers
51 Consultations
5.0 on 5.0
On the demise of your mother her property devolved through succession on her widower and children equally whereas the share of your father devolved further on all his children after his demise You and your siblings are at liberty to make a will of your respective share. 
Ashish Davessar
Advocate, Jaipur
18183 Answers
449 Consultations
5.0 on 5.0
Upon the intestate death of your father and mother, the property left behind your mother shall devolve equally on all their legal heirs. 
Now you and your siblings shall be entitled to an equal share in the house property, which you can settle down amicably as per the mutual arrangement and agreement.
T Kalaiselvan
Advocate, Vellore
14151 Answers
127 Consultations
5.0 on 5.0
Hi, after the death of your father all the legal heirs have equal right in the house.

2. You can entered into a partition deed between the family members dividing the property equally.
Pradeep Bharathipura
Advocate, Bangalore
4105 Answers
133 Consultations
4.3 on 5.0
1. Both of your parents died intestate,

2. All the legal heirs of your parent's property will equally inherit the shares of the properties of your parents,

3. All of your brothers and sisters can execute and register a partition deed duly dividing and demarcating everybody's share,

4. After registering the said partition deed, all of you mutate your individual names as owners of the individual shares.
Krishna Kishore Ganguly
Advocate, Kolkata
12143 Answers
233 Consultations
5.0 on 5.0
As I said earlier by way of mere affidavit title is not relinquished. So you continue to be its co owner even though you have done the affidaivt and hence the Will by your father if made in favour of your brother shall have no adverse effect on your share in the property.
Devajyoti Barman
Advocate, Kolkata
5248 Answers
54 Consultations
4.9 on 5.0
1) deed of relinquishment duly stamped and regd is necessary to relinquish your interest in property 

2) mere affidavit would not suffice

3) if your father executes will in favour of brother you have to challenge the will 

4) file suit for partition to claim your share in property 
Ajay Sethi
Advocate, Mumbai
23367 Answers
1224 Consultations
5.0 on 5.0
Relinquishment through an unregistered document even in the form of affidavit is not legally valid and any transaction made subsequently on that basis also are not valid especially the Will, if any has been made by your father.  If there is no dispute and you accept the will and allow your brother to inherit the entire property without giving any share to you, it will be a decision purely out of your discretion and to avoid litigation or unpleasant situation in the family atmosphere. However as per law, your father cannot become a legal owner for the entire property, he can bequeath only his share of property to your brother through the will, if any.
In the given situation, your brother may be entitled to 2/3rd  share i..e., his 1/3 plus your father's 1/3 (as per will, if any) thus you are still  entitled to 1/3rd share in the property. 
T Kalaiselvan
Advocate, Vellore
14151 Answers
127 Consultations
5.0 on 5.0
1. You mean to say that you are now apprehending that your deceased father might have executed a WILL in your brother's favour when your father was alive.
2.  For relinquishing right over the property, one has to sign the Release Deed in favour of somebody by paying the prescribed Stamp Duty and getting it registered in jurisdictional Sub Registrar's Office and then only it is legally O.K. Your signing an affidavit is only to change the name in the records in the Municipality/Corporation Office from your mother's name to your father's name. That doesn't mean that you and your brother have relinquished your rights over the property in favour of your father by signing an affidavit.
3. Your father's right is limited to his share in the property and he was at liberty to execute a WILL in favour of any person/s during his lifetime. In case, when he was alive, if he had executed a WILL in respect of the entire property without restricting it to his share of the property then the WILL executed shall have no legal sanction and such a WILL can be challenged in the appropriate Courts of law.
Shashidhar S. Sastry
Advocate, Bangalore
1242 Answers
59 Consultations
5.0 on 5.0
1. After you had relinquished your share in your mother's property in favour of your father he became the absolute owner of the said property,

2. Being the absolute owner of the entire property of your demised mother, your father can certainly execute a will in favour of your brother for which he won't have to take any consent from anybody including you.
Krishna Kishore Ganguly
Advocate, Kolkata
12143 Answers
233 Consultations
5.0 on 5.0
When your father is dead how can he execute a will now?
Ashish Davessar
Advocate, Jaipur
18183 Answers
449 Consultations
5.0 on 5.0
your father could make a Will because he was absolute owner of the property (you had relinquished your right). your consent was not required for him. you should do some query towards Will.
Shivendra Pratap Singh
Advocate, Lucknow
2771 Answers
41 Consultations
4.9 on 5.0
contact your brother and collect information regarding the Will
Shivendra Pratap Singh
Advocate, Lucknow
2771 Answers
41 Consultations
4.9 on 5.0

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