Hello - My father passed away last year and has left for us (mother, sister, brother and myself) his stocks, FDs, house, plot. He has written a will, but it was not registered. What steps do we need to take to consolidate all his hard worked earnings and distribute evenly among the four (that was his wish)? My mother is in India, whereas us lot are abroad. If you could let me know the steps - that will be immensely helpful. Regards, -Harsha
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1) registration of will is optional
2) apply for probate of father will
3) enclose father death certificate
4) affidavit of one of the attesting witnesses has to be enclosed to testamentary petition
5) pay the court fees . notice would be issued to the legal heirs
6)if there is no contest probate does not take more than 6 months
All the properties other than the properties that were bequeathed in a will shall devolve equally among his legal heirs equally.
Now you can enforce the Will by the beneficiaries by executing the same as per the recitals in the will and get the properties transferred on individual names.
If there is no proper distribution in the Will then all of you should decide to divide the properties including the FDs and other movables as per the mutually agreed decision which was arrived after an amicable meeting among all the legal heirs of the deceased.
If need be, assistance of an advocate to sort out the issues among yourselves may be sought .
1. Registration of 'WILL' is not compulsory and is only an option but 2 witnesses signatures are a must to be considered as the valid 'WILL'.
2. To fulfill your father's wish, all the legal heirs can jointly execute a "Family Settlement Deed" wherein the entire movable and immovable properties be consolidated and reduced the same into writing taking into consideration your deceased father's wish and to act as per that.
3. Since your mother is in India and all other legal heirs are not living in India they can execute Power of Attorney in favour of their mother to represent them in India.
1. If there is consensus then all of you can make a partition deed and register deed whereby you divide all his properties.
2. Another option is to apply for Probate of Will and then distribute the properties as per this direction.
3. Once that os done all disputes are removed and all of you would manage to live life peacefully.
All - Thank you for the responses. I have a follow up question: what would be the timelines + effort + costs needed for the following (from the responses, the below seem to be the appropriate next steps - one or many): (1) Probate (2) Family Settlement Deed (3) Partition Deed Thanks again, -Harsha
1. Probate of 'WILL' is not a must in some states in India.
2. For 'Family Settlement Deed', if all the details are forthcoming, within a maximum of 7 working days the work can be accomplished and the cost for registration, incidental expenses put together can be Rs. 10,000/-.
3. Partition Deed can be prepared & executed by paying the applicable Stamp Duty + Registration fees + Incidental charges in Sub-Registrar's Office put together can be around Rs.40,000/- in the State of Karnataka. Maximum time required is 4 days.
The cost involved in the above will depend on the lawyer who you would engage for the services.
The probate petition can be filed in the court competent. In my opinion, since there is no dispute about the Will among the family members, it may not be necessary to get probate of will through court. For name transfer or mutation of revenue records on the basis of Will, the NOC by other legal heirs will be sufficient for the revenue department to approve permission for transfer or mutation of revenue records.
If you would like to ignore the will and arrange for a family settlement or partition deed on mutually agreed terms and conditions among the family members, then the charges for preparation of the deed, registration charges and stamp duty involved, can be ascertained from local document writer itself.
1. Will is not required to be registered legally and unregistered will is equally enforceable.
2. As per law, probate shall have to be taken for the said will bequeathing the properties of your demised father.
3. However, for getting the probate of the will you shall have to pay Rs.50 K (maximum amount to be paid depending on the value of the properties mentioned in the will) while applying for probate of the said will.
4. Getting probate of the will also will take some time for completing the mandatory procedure (may be 6 to 9 months) like sending notices to all the legal heirs etc.
5. To shorten the time for inheriting the said properties as per his will, you all can register a settlement deed duly dividing all the properties of your demised father as per his wish as has been mentioned in his said will. it will be possible since all of you being the beneficiaries have no objection in obtaining the properties bequeathed by him in his will which can exactly be mentioned in your said proposed settlement deed.
6. In this way you shall give honour to your demised father's wish/will and also divide the properties as willed by him immediately after registering the said settlement deed. In the said event you are required not to proceed with the will legally.
1. Probate will cost you Rs.50 k plus lawyer's fees and other court expenses which might go up to Rs.10K to Rs.15 K.. It will take 6 to 9 months to get the grant of probate if there is no challenge of the will from any of his legal heirs.
2. Registration of Partition/Settlement Deed will take just one day and the amount of stamp duty and registration fee will depend on the value of the property being settled/partitioned plus the fees of the lawyer for drafting and registering the said settlement/partition deed.
Probate takes around 6 months
2) probate is judicial proof that will is genuine
3) court fees for probate is Rs 75000 in Maharashtra
4) legal fees vary depending upon lawyer engaged by you
Hi
1) The law does not differentiate between a registered WILL or an unregistered WILL as there is no legal necessity for the WILL to be registered.
2) Since your father has left behind a WILL, you can get the WILL probated/Letters of administration issued by the court and once the WILL is probated then the properties are distributed in accordance to the WILL.
3) For probate the process time lines will be approximately 6 months.
4) Court fees for probate/ letters of administration will be 5% of the market value of immovable properties. Since you have paid the court fees at the time of probate application, no further stamp duty is required to be paid at Sub-Registrar office for transfer of property. Registration fees at Sub-Registrar office should still be paid.
5) Court fees payable at the time of probate/letter of administration application will be 5% of average 12 months price of stocks if stocks are involved. No further fees is payable for transfer of shares
6) In general Family Settlement deed or Partition deed are executed if and only if the father has not left behind a Will
OR
7) If the WILL does not cover certain properties, then Family settlement deed or partition deed is executed at Sub-Registrar office, jointly by all members. The fees for family settlement deed / Partition deed is about 2% of fair market value of property.
8) Since most of you are abroad, you can sign the copies of family settlement and get your signatures attested in respective indian embassies.and your mother can then register the family settlement deed for and on behalf of you( subject to you granting power of attorney to her for registration of family settlement deed/ partition deed).
Hope this information is useful.
