My father died and I am based outside India. My brother has sent me a draft for consent as he is applying for Letter of Administration. Kindly advise what is the meaning of the clause below please. 3. I say that I being the son and one of the legal heirs of the deceased above named I do hereby give my full and free consent in favour of the Petitioner above named and pray that the Letters of Administration without Will may be granted in his favour without service of any Notice/Citation upon me and without justifying any surety in respect of my share in the estate left by the deceased above named.
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1) when deceased dies intestate and your brother applied for LA notice is required to be issued to all legal heirs
2) by filing consent affidavit you give your consent for issue of LA in his favour and there is no need for notice to be issued to you
3) there is no need for brother to give any surety for your share
No letter of administration can be granted by Court to any one with notice to and consent by all legal heirs. The declaration under said clause given by one of the sons is not binding on the Court and Court cannot appoint an administrator to the estate of deceased without notice and consent of all legal heirs. There is no procedure for appointing administrator without issuing notices to all legal heirs. The said clause has no legal effect. Even if you agree and sign the draft, administrator cannot be appointed without your consent.
Thank you Advocate Sethi for your prompt reply. So I am NOT relinquishing my rights as a legal heir to my brother, he is merely representing me and when the LA is issued, I will also be entitled to my legal share. Is my assumption correct please? Thank you
You are not relinquishing your share in property
you have granted your brother consent to act as administrator of deceased father estate
The letters of administration is obtained by the legal heirs of the deceased. Now your brother should apply for it on behalf of all heirs and ypu may be represented by a PoA. You shouldn't give your rights away as you are one of the heirs.
"Without justifying any surety" means that in case he doesn't give you your share he hasn't given you any surety.
- As per law, when a person dies without leaving a Will or any testamentary document, in such cases through the issuance of Letters of Administration , an administrator is appointed by the Court to administer the estate of the deceased person.
- Further, if the estate comprises of both immovable and movable assets or only immovable assets then Letters of Administration is required from the court in order to administer the estate of the deceased , and even to operate locker/s of the deceased maintained with banks, LOA is required.
- Hence, after the demise of your father intestate , your brother has applied for getting LOC from the court ,and for which NOC is required from all the legal heirs , if unable to appear before the court.
- Here your share will not pass and only right of maintain will be awarded to him.
Dear sir
You will not be relinquishing your share to your father's property, however you are giving your brother complete right to act as the administrator in this case and the right to maintain. You are also saying that your brother need not give you any surety.
Thank you
When we say "without justifying any surety" does it mean that my brother can deny my legal share as I am making him the administrator? Thank you
He cannot deny you your share in property
If a person dies intestate, then an applicant seeking administrative rights pertaining to the deceased estate files for Letter of Administration.
Letter of Administration is granted to the beneficiaries after they apply to a Court of law having competent jurisdiction. Letter of Administration entitles the administrator to all rights belonging to the intestate as effectually as if the administration had been granted at the moment after his death.
There is nothing fishy about his intention by inserting this clause, it is just a routine, however you may have to exercise abundant caution hence you may obtain a proper legal opinion from an experienced lawyer by producing the entire document that is proposed to be filed before court seeking the said relief.
Your share in the property cannot be taken away/grabbed by your brother for any reason especially by signing this clause.
You can be rest assured about it.
Your brother is appointed as a administrator to administer the property on behalf of all the legal heir/successors in in interest to succeed to your deceased father's intestate estates.
He cannot deny or deprive your rights in the property for any reason.
No he can't deny your legal share
- As I mentioned in my earlier reply , that by way of this letter of administration your brother will get the authority of administration and management of the property , and will not get your share without getting your consent .
the clause means that you trust the person who will apply to the court for being appointed as an administrator and will properly administer the assets of the deceased by transferring them to his legal heirs as per law
as you repose the trust in that person, that is why it states - 'without justifying surety for my share' - which means that you do not want any guarantee or assurance from that person in order so that he properly transfers your share in the assets of the deceased as per law
Dear Sir
This phrase does not imply that your brother can deny you of your share in the property.
It simply means that you trust him enough to be made the administrator and handle the formalities and he need not give you any written surety.
Thank you