My grandfather(my dad's dad) passed away recently. I and my sister are his only granddaughters. My dad, his only son passed away before him. We have legal heir certificate for my dad but we were refused a legal heir certificate for our grandfather's death as we are not his direct heirs. My grandfather has written a will where he has mentioned about giving his houses & land to me and my sister. Is his will and death certificate alone are sufficient while selling or transferring his properties? And I have plans of going out of country for about 1 year. Since he doesnt have any legal heirs, does this selling & transferring of names, to be taken care immediately or they can be taken care after I am back to the country? I am just helpless.Please give me your assistance.
Asked in Property Law from Chennai, Tamil Nadu
1) apply for probate of grand father will
2) it should not take more than 6 months
3) any purchaser would insist on probate of the will
4) probate is judicial proof that will is genuine
5) on basis of probate carry out mutation of property in nabe of benficiaries then sell the property
Thank you so much for your quick response. Can I get the probate and then sell the property later when I am back to the country?
Asked 9 months ago
1) It would be sufficient to do the transfer or sale as the case may be after you return from your foreign assignment after an year. Your inheritance via the Will of your grandfather will not expire during this time.
2) The Will is absolute bequeathing of the property and this will help you to transfer the property to yourself or even make a sale unless in Tamil Nadu a probate of the Will is required.
You can get the property and land of your grand father transferred in the name of your sister and you based on the following documents which are sufficient for getting the property mutated in your name.
a) Death certificate of your grand father.
b) Death certificate of your father and
c) Legal heir certificate of your father
You and your sister should approach the Sub- Register office and get the properties transferred in your name through a conveyance deed after payment of registration fees and stamp duties.
WILL may or may not be produced at the Sub-registrar office (you should take the call to produce the WILL at sub-registrar office, if the sub-registrar who has discretionary powers may or may not accept the WILL without Probate).
Another alternative is to get the WILL probated in court of law. This process might take about 4 months and after the WILL is probated, you need to go to Sub-registrar office with the court decree and get the property mutated in your names.
Registration fees and stamp duty in case of Mutation without probate of WILL will be
a) Stamp duty- 4% On the market value of the property
b) Registration fees - 1% on the market value of the property
Registration fees and stamp duty in case of Probate of Will will be
a) Court fees-5% of the market value of the property.
b) Stamp duty after probate of Will -1% on the market value of the property but not exceeding Rs.10000/- for each share
c) Registration fees after probate of Will- 1% subject to a maximum of Rs.2000/- for each share.
Hope this helps.
Yes you can get probate and sell property later when you return to India
Thanks a lot for your responses. I have one more doubt..This is regarding my grandpa's bank account..He mentioned all of his accounts in his will and has written that a certain amount has to go to his sister and after that the remaining amount has to be shared between me,my mom and sister. But he has also mentioned that the amount he is giving to his sister has to be deposited as FD and after his sister's lifetime, the deposit has to come back to us. i,e his sister can enjoy the interest from the FD during her lifetime and later after her, the matured amount should come back to us. I went to the bank manager and I had to show the will as proof as I did not have legal heir certificate. He got the death certificate and xerox of the will and kept with him and drafted a letter for me, stating about the FD and division of amount but hesitating to mention about the mature amount returning back to us after the lifetime of grandpa's sister. When I asked about this, he told that will be taken care by the bank after the grandpa's sister's death as the will is submitted as a proof. Should I agree for signing the letter which doesn't state the returning process of the amount? or how else can i deal here?
Asked 9 months ago
If the property is situated where the will requires a mandatory probate then file a petition for probate in the competent court. Without probate, in the towns where it is mandatory, the will has scrap value.
You can sell the property once probate has been granted. To be able to sell the property you are not required to be in India as you may execute a GPA in favour of a blood relative to authorize him to sell it for and on your behalf.
The bank goes by the text of the obligations that have been cast on it. That the maturity amount will be realised by you after the lifetime of his sister is a future right, which the bank need not mention in the letter. If the bank does not after the demise of your grandpa's sister allow you to redeem the FD then you may file a suit for injunction against it.
bank will act as per your grand father instructions only only probate of father will
you should send letter to bank . mention that as per grand father will sister is only entitled to interest and should not be permitted to with draw the FD amount
3) obtain bank acknowledgment on said letter
Is his will and death certificate alone are sufficient while selling or transferring his properties? And I have plans of going out of country for about 1 year. Since he doesnt have any legal heirs, does this selling & transferring of names, to be taken care immediately or they can be taken care after I am back to the country? I am just helpless.Please give me your assistance.
If there is no controversy or dispute on the Will by anyone else, then you can go ahead with the sale of the property acquired through the said will.
Or you may require to get probate of will.
If you are likely to remain out of country for a long time, better get the property transferred to your name and also mutate the revenue records before leaving for foreign country.
Can I get the probate and then sell the property later when I am back to the country?
Actually when there is no dispute over the property acquired, getting probate of the will is unnecessary, however if yo really would like to get the will probated, then you can do it now itself and can decide about selling the property later on.
When I asked about this, he told that will be taken care by the bank after the grandpa's sister's death as the will is submitted as a proof. Should I agree for signing the letter which doesn't state the returning process of the amount? or how else can i deal here?
First of all you should actually thank the bank manager for having helped you and cooperated with you to take care of your need as per will contents, otherwise he can demand to get order of probate of will from court.
You can check the document, i.e., the FD instrument in which the conditions for maturity shall be mentioned properly, he has to show that to you on demand.
1. There is no reason for refusing to transfer the properties of your grandfather who died intestate for the reason that you are not his direct heirs,
2. You two sisters are his only legal heirs and can claim inheritance of his said properties,
3. You can file an application before the BLRO asking him to mutate your names of the said properties in his records,
4. If he refuses, file a Writ Petition praying for a direction upon him to act based on your legal heir certificate,
5. Alternatively, you two can apply for grant of probate of the will of your grandfather which will make you two the owners of the said properties.
1. Yes, once you get the probate of the said properties you can do whatever you wish to do with the said property legally,
2. Grant of probate may take 1 to 2 years if contested by any other claimant of the said properties as legal heirs.
1. Neither the Bank Manager nor you can rewrite your grandfather's will,
2. Take probate of the Will and after that submit copy of the same to the Bank for execution of the will,
3. Take the service of a lawyer for executing the terms of the will.