• Documents and process required in absence of will

My father passed away recently and since it was rather sudden he did not leave any will behind. The family is survived by my mum, 3 sisters including me and a brother. Now 2 of the sisters also reside out of country, hence its to bear in mind process which accommodates for them not being in the same country. My father has property in Punjab and Delhi and all of us siblings want to hand and ensure the control of both the movable and immovable property goes to the mother. One of the sisters could be a concern as she wants to ensure that if in case something happens to the mother she should get her due share. So bearing that in kind we just want to ensure there is no contestation later on the mothers rights. 
Question 1) In this case what are the documents that we should ensure to get sorted and signed or created. Based on my research I see 1) legal heir certificate 2) succession certificate and 3) an affidavit like power of attorney to the mother or should that be a 4) a relinquishment deed. 
Question 2) is the succession certificate necessary if we get the legal heir certification done and same for whether to do a power of attorney or relinquishment deed. 
Question 3) anything else we must do to ensure that her rights to any of the movable or immovable property are not contested later on by any of the siblings. 
Questions 4) for the sisters living abroad is there anything in the process that requires them to be present in India.
Questions 5) any limitations on documents as in the documents once created should be applicable for property across Delhi /noida and Punjab.

Would really appreciate your guidance on above
Asked 5 years ago in Property Law
Religion: Sikh

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13 Answers

1. Since your father has died without any Will then on his death your mother and all your siblings have inherited his property in equal shares . So each of the share holders have their undivided lawful shares in the property which ca not be released without their consent.

2. Now any of you can always transfer your respective shares in favour of any of you or your mother by way of gift deed or deed of relinquishment.

3. If any of the co sharers refuses to give consent to your proposal she/he can file a suit for partition can claim his due share from the court of law.

4. There is no adverse impact on law inheritance by any of you having been living in abroad or a citizen of a foreign country. 

Devajyoti Barman
Advocate, Kolkata
23199 Answers
511 Consultations

You and your siblings can execute relinquishment deed of property 

 

2) if sister is staying abroad she can execute POA    In favour of family member to execute relinquishment deed 

 

3) POA should be attested before Indian consulate 

 

4) succession certificate is only for movable debts and securities and not for immovable property 

 

5) not necessary to obtain succession certificate 

Ajay Sethi
Advocate, Mumbai
96820 Answers
7811 Consultations

As you have mentioned in point no.1 all those documents will require.

Legal heirs certificate is for immovable property and succession certificate is for movable property.

Once the title of property is transferred by way of relinquish deed than nobody has any rights on the property except  mother.

After that mother can do anything with property sell, gift, or will to anybody as per her wish. So your sister concern point is correct regarding her share should remain in the property.

You all siblings can give GPOA authority for legal processing and taking rent, looking towards property.

Ganesh Kadam
Advocate, Pune
12987 Answers
262 Consultations

1.  legal heir Certificate is required succession certificate is required only in case the percentage of the property is divided in different parts integers then the equal percentage.

2. for Transfer of Property only in one name you need relinquishment in this regard to get the property transfer in only one name are only in few names those were not interested in may provide relinquishment Dr rights to interested in as per their wish.

3. After the death the rights of the legal Heirs is automatically created as no property can be without titleholder only cases to transfer the rights to do the legal Heirs name and for that purpose you need to get the legal heir certificate.

4. For  those who are living abroad you need to send the relinquishment deed made from India and that should be signed by them and get it as indicated turn the high commissioner air and the same can be notarized in India there after to submit to the department for the transfer.

5. No limitation, you may use the documents as and when required.

Please remember to rate this answer if you like it.

Vimlesh Prasad Mishra
Advocate, Lucknow
6852 Answers
23 Consultations

1. See firstly sisters residing abroad can sign a power of attorney in favor of you or your brother or mother to apply for transfer of property records in your favors and obtain legal heir certificate.

2. See the property in name of all legal heirs can be mutated the records can transferred if after that the complete share is to be given to mother then all legal heirs can create a relinquishment deed.

3. After relinquishment deed mother shall be absolute owner of the property and she can make gift or will of sake so she may give it to anyone she want so after relinquishment the share of sister cannot be assured.

4. As such there presence in India is not required if there is power of attorney.

5  legal heir certificate created can be used for all properties.

Shubham Jhajharia
Advocate, Ahmedabad
25514 Answers
179 Consultations

 

 On mother demise intestate property would devolve on you and your siblings equally

2) under POA mother can sell the property 

 

3) give mother only special power of attorney 

 

4) it would cover all properties if so provided  for 

 

5) mother can execute will bequeathing property to whomsoever she desires 

 

6) it is better you seek phone consultation with any lawyer in the website or meet lawyer personally 

Ajay Sethi
Advocate, Mumbai
96820 Answers
7811 Consultations

1. See if mother has made a will then property shall be distributed as per the will if no will then all legal heirs of mother gets equal share as per the succession act.

2.  See if the power of attorney with complete rights is given then in that case yes POA is sufficient.

3. Yes one power of attorney is valid for all properties though it is better to mention the properties and there location and details in POA.

4. Yes mother can create a will.

5. See POA is not valid after demise of the mother.

6. See if after POA but no relinquishment then mother can make will for her share only but once relinquishment deed is there and mother is absolute owner of the property she can freely make will for the complete property. 

Shubham Jhajharia
Advocate, Ahmedabad
25514 Answers
179 Consultations

1. A registered release deed executed by all the children in favor of the mother shall make her the absolute owner of the property.

She can in turn write a registered Will in favor of all her children dividing the property equally or in the manner agreeable to all of them.

Alternately she can execute a registered settlement deed in favor of hr children in which if the property cannot be divided into four then someone among them may pay the cost or the value of the share of property who will not be able to get the hare in the property.

She may have life interest in the property so that the settlement deed comes into effect after her lifetime.

2. Legal heirship certificate will be sufficient.

A power of attorney deed shall be executed by those people who are residing in abroad  who can execute the same in favor of other people in India to execute the registered release deed on their behalf

 3. You can follow the above suggestions made to prevent any type of litigation.

4. Read answer two above.

5. A single document relinquishing their rights shall be enough for both the properties.,

 

T Kalaiselvan
Advocate, Vellore
87021 Answers
2335 Consultations

6. The properties on her name shall devolve on all her legal heirs equally.

7. It is not advisable because of the technical hazards involved in it which may create problem at a later stage.

8. It depends on the recitals made in the POA deed.

9. Yes

10. Read answer 6 above.

11. If your mother  holds only POA from all her children and do not execute any other deed then she can write a Will pertaining to her property alone and not for the entire property because the power of attorney deed is not  title document.

T Kalaiselvan
Advocate, Vellore
87021 Answers
2335 Consultations

1. Your research is very good as you will need legal heir certificate for immovable properties and succession certificate for movable assets of father. You will need POA from sisters living out of country and affidavits from legal heirs who are giving up there share to mother. 

2. Yes succession certificate is mandatory for claiming movable assets like Bank accounts and FDs 

3. You can make a settlement deed in favour of mother it cannot be challenged by anyone once registered.

4. No sister will not be needed in India if they give POA. 

5. No there will be no such limitation for territorial jurisdiction.

 

Mohit Kapoor
Advocate, Rohtak
10687 Answers
7 Consultations

A succession certificate is a ideal for you case. But even a family settlement deed or partition deed will also do to determine your rights

Prashant Nayak
Advocate, Mumbai
32413 Answers
199 Consultations

You have to have a relinquishment deed in favour of your mother and based upon that a declaratory suit has to be filed. The court shall declare that your mother is the owner of all the property.

Rahul Mishra
Advocate, Lucknow
14107 Answers
65 Consultations

After your mother the property shall be devolved upon her children.

Yes one power of attorney is sufficient.

If you sign a relinquishment deed tgen that means that the property now belongs to your mother and hence she can dispose it as she likes. She can make a will and give it to anybody.

 

Rahul Mishra
Advocate, Lucknow
14107 Answers
65 Consultations

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