How to obtain probate of a Will

How to obtain probate of a Will

A Will is an important legal document which must be drafted with the help of an Advocate. Probate legalizes only a valid Will

People approach us with many queries relating to the probate of a Will. Here we discuss some of those queries.   

What is a Will?

A Will is a legal document. It contains the desire of a person for the distribution of his assets after his death.

Read More: Making a Will

What is probate?

Probate is proof of the Will, i.e. evidence of the fact that a Will exists and is authentic. As defined in the Indian Succession Act, 1925, probate is the copy of the Will issued to the executor with a seal of court and permission to handle the estate of the testator. 

Probate is an authority given by the court to the executor named in the Will.  It is required to execute the Will as per the wish of the deceased. There is a process to obtain a legal document called “Grant of probate” from the court.

The executor needs this authority for administering the Will. It is used for managing the property of the deceased as per the tenor of the Will.

Is probate of a Will necessary?

No, it is not necessary to obtain probate of a Will in every case. However, it is required when the Will is made by a Hindu, Buddhist, Jain or Sikh and

  • If the Will is made in any of the areas subject to the jurisdiction of Governor of Bengal and within the local civil jurisdiction of High Courts of Madras and Bombay or
  • If the Will is made outside but related to immovable property located in said areas.

No probate is necessary in case of Wills made by Mohammedans.

Read More: Where there’s a Will, there will be more to learn!

As per section 213 of the Indian Succession Act, an executor or legatee (beneficiary) can establish its right under a Will in any Court only if the Will is probated. A probated Will is required only in abovementioned two cases.

Process of Probate:

The executor applies for the grant of probate. The application is filed in the court having jurisdiction over the area where the property is located. The probate may be granted by a higher court or lower court depending upon the value of the immovable assets.  

Read: More: What happens if one dies without making a Will?

Along with the application, the applicant has to make submissions with documents in support of the same:

  • Fact of death of the testator
  • Time of death
  • This is the last Will, and it was duly executed (a statement to the effect that the testator signed the Will in the presence of two witnesses)
  • Share of executor (who is applying for probate)

Probate is issued on a stamp paper. The applicant submits the stamp paper. The value of the stamp paper is equivalent to the requisite court fee.

Once the application is submitted –

  • notice is issued to the next kin of the deceased
  • a public notice is also published for the general public

The notice is issued to file objections to the grant of probate in favour of the executor named in the Will.

If no objections are filed, probate is issued. If objections are filed, application is contested. The parties lead evidence, and the case is decided accordingly.

Read More: How to register a Will?

Time limit:

There is no time limit to file for probate. But unnecessary delay needs to be explained.

The process of obtaining probate requires a valid Will and possession of certain other documents to justify the claim. It is advisable to take timely legal advice for the same.

How to file a partition suit for a property in India

how to file a partition suit for a property in india

Partition is a division of property among those who are entitled to the same. In case of property held jointly, if all the co-sharers decide mutually among themselves to divide the property and agree for specific share, there is partition by mutual consent. If there is a dispute, the parties file a suit for partition in a civil court.

Existence of a Right:

A person can claim a share if he has a right in the property. The right can be there:

  • As a legal heir
  • As a co-owner/co-sharer
  • Through any document conferring the share – Will, Gift Deed, Sale deed etc.

When the partition suit is filed, Court may fix an enquiry and appoint a Court Commissioner to ascertain the existence of the right of the party and its share in the suit property.

Read More: Division of property between brother and sister after father’s death

Process of filing a partition suit:

Partition suit is a civil suit, and the process of filing is the same as that of a civil lawsuit.

A. Drafting and filing of plaint – A plaint is nothing but a statement of facts of the case wherein the claimant explains and justifies his claim for the share in the property.

  • A plaint is drafted as per the formats applicable in a particular court. Generally, it is the same everywhere in India with a few differences in presentation.

B. Affixing the appropriate court fee – Requisite court fees must be deposited at the time of filing the plaint. It is essential to submit an accurate court fee. The court fee depends upon :

  • Nature of the case- If the parties are in joint possession of the suit property, the amount of the court fee is fixed. The court fee does not depend upon the market rate. If the party is not in  possession, the court fee is paid on his share as per the market rate.

The court fee structure varies from State to State.

Read More: Division of Property Among Daughters and Daughters-In-Law

C. Placing on record the relevant documents: The party in support of its claim submits the relevant documents. The documents can be-

  • Title deed – It is the primary document which confers the title to justify share in the joint property. It can be in original. If original not available, certified copy can be obtained.
  • Valuation of property- A certificate is issued by the Office of Sub Registrar confirming the value of the property as per the market rate.

Any other document can be filed, which establishes the right in the suit property or which fails the claim of the defendant.

The party filing the suit may or may not possess the original documents. Certified copy of the same can be obtained from the offices of concerned authorities.

Read More: Property rights of a wife after husband’s death

Who can file?

Any or all of the co-owners can file a partition suit. The co-owners can be legal heirs also if it is a family property. Anyone having a share in the property which is intended to be partitioned can file the suit.

Where to file?

A suit for partition is filed in a Civil Court having jurisdiction over the area where the property is located.  If there are several properties, the lawsuit can be filed in any one of the courts.

The partition suit results in a decree which ends the joint nature of the property. Court may order sale of the property and distribution of sale proceeds.

Importance of Due Diligence and Title Search before Property Purchase

Importance of Due Diligence and Title Search before Property Purchase

Due diligence and title search play an important role in real estate/property transactions.  People approach us and often have the following queries.

What is due diligence and Title Search before property purchase?

It means taking all precautions and ensuring that investment in a property is safe and secure.

By exercising due diligence:

  • The buyer identifies and evaluates all types of risks involved in investment
  • The buyer tries to rule out/minimize these risks

How do we go about it?

Due diligence implies:

  1. Scrutiny of title:

Title Search relates explicitly to the search of ownership and the rights of the owner to sell the property. Two kinds of title search reports are there.

  • Full Search – The title of the property is searched for a period of previous 30 years.
  • Limited Search – The title of the property is searched for a period of previous few years (less than 15 )

The search report is prepared depending upon the nature of the transaction. The title search is a very crucial part of due diligence as the defective title leads to no transfer at all.

Also Read: What is a Sale Deed? Legal Importance and Registration Process

B. Search for the right of the owner to sell the property:

The owner must be capable of transferring ownership. The buyer has to ensure that there is no restriction to the power of alienation of the owner. The limitation can be there:

  • If the owner is a minor or a person of unsound mind. Such a person can sell through guardian or a person so authorized.  
  • The owner is not having an absolute right in the property.
  • The owner is a lessee or a tenant.
  • Statue does not permit sale of the property.

Which records are searched?

  1. The records maintained
  2. at Sub Registrar’s office
  3. with Tehsildar (mutation and Jamabandi)
  4. records maintained by Registrar of Companies
  • Title deeds – Gift deed, Will, Lease Deed, Sale Deed etc

 What is the significance?

There are many reasons to exercise due diligence before purchasing a property:

Also Read: How to cancel Illegal Registration of ancestral property

  • Increase in the number of frauds – There has been an increase in frauds related to real estate. Due diligence involves verification of documents, title and ownership rights to ascertain the authenticity of the same and therefore, helps to prevent fraud.
  • Cost of investment – People invest hard-earned money or a huge amount of loan in real estate. Due diligence is required to safeguard the funds being invested. As stated above, risks are identified, evaluated and minimized by due diligence.
  • Disputed property – Before buying a property, buyer has to ensure that the property is not involved in any litigation. If there is any court case pending concerning the property or the rights of the owner, it can pose hardships later for the buyer. The buyer is bound by the decision of the court, which may or may not be favourable. 
  • Encumbrances which affect the value of the property– The property intended to be purchased must be free from all types of encumbrances like
    • Mortgage
    • Lien
    • Charges due (utility bills, tax payment or any other statutory payment)
    • Litigation

A certificate in this regard is issued by the Office of the Sub Registrar. The buyer must inspect the original title deed as it is deposited with the Bank if there is any loan against the property.

Also Read: What To Do If Your Property Possession Has Been Delayed?

  • Easement Rights/ Acquisition process affect the interest of the purchaser: The property might be having
    • an easement right (right to have a passage through the land)
    • covered under acquisition scheme of the Government.

The buyer must check for the same. It affects the returns from investment.

  • Necessary Approvals – A buyer must ensure that the owner has obtained necessary approvals from the authorities. Approval is granted if the statutory requirements have been fulfilled. 

LEGAL ASSISTANCE

It is advisable to get legal assistance for the search of records and verification of documents.

What is a Sale Deed? Legal Importance and Registration Process

What is a Sale Deed Legal Importance and Registration Process

A sale deed is one of the significant documents in property transactions

What is a sale deed?

A sale deed is a legal document that describes the sale of a property between the parties  (buyer and seller). It is proof of ownership.  It transfers the rights in the property from the seller (transferor) to the buyer (transferee).

Following rights are transferred to the buyer:

  • Right to sell
  • Right to use
  • Right to lease/mortgage

It is essentially a contract and therefore, all the legal requirements of formation of a contract must be fulfilled.

Also Read: How to cancel Illegal Registration of ancestral property

Legal Importance: Registered Sale deed is a legally binding document.

Proof of ownership:

Once the process of executing the sale deed is completed, the ownership in the property gets transferred to the buyer. The buyer gets absolute right over the property, and he gets the title of ownership.

Details of the parties and the property – help the investor and the parties

Sale deed contains the following elements:

  • Name, father’s name/husband’s name and address of the parties
  • Address of the property, area of the property –full description
  • Payment of sale consideration-mode and time
  • Delivery of Possession
  • Encumbrances on the property –loan, mortgage etc.
  • Compliance of Statutory requirements
  • Statutory payments like utility charges, property tax etc.
  • Clause of Penalty or compensation in case of default
  • Date of execution of deed with registered deed number, serial number, book number, page number etc.

This information is helpful –

  • It avoids ambiguity as the parties are clear about their obligations and rights
  • It guides an investor before finalizing his decision to invest in the property in case of resale.

 Resale –

A sale deed facilitates the resale of the property. It is a primary document conferring the title on the buyer. This title can be transferred by him further based on the deed.

Also Read: What benefits budget 2019 has for NRIs

Process of Registration:

As per the Registration Act 1908, the sale deed needs to be registered compulsorily.

  • The deed is drafted and typed on a non-judicial stamp paper.
  • The buyer has to purchase the stamp paper. Value of the stamp paper depends upon following:
  1. Value of the property –  Sale consideration and Value of the property as per circle rate is compared. Amount of stamp duty is based on higher of the two.
  2. Stamp duty rate applicable is the rate prevalent in the State where the property is located.
  • The sale deed has to be signed by both the parties on every page. The attestation by two witnesses is also required to complete the formation of the deed.

Also Read: What To Do If Your Property Possession Has Been Delayed?

Registration: – The sale deed is registered at the office of the sub-registrar having jurisdiction over the location of the property.

  • The parties seek an appointment with the Sub Registrar’s office. There is provision for online appointment also.
  • The parties need to be present physically at the office of the sub-registrar on the date of appointment. The seller presents the original documents. The Sub Registrar verifies the same.
  • The parties can also mark presence through the power of attorney holder. 
  • The witnesses to the sale deed are also present.
  • The photographs of the seller and the buyer, their thumb prints and signatures are put on the sale deed.
  • All the parties must possess the ID proofs.
  • The buyer pays registration fees
  • Registered sale deed can be collected at the time given.

In few states, property registration is permitted online also. The parties appear before the authority for final signatures and registration of the document.

How to cancel Illegal Registration of ancestral property

How to cancel Illegal Registration of ancestral property

Registering a property means recording the ownership of the property and other transactions related to it in a public record.

Ancestral property is a one in which a person has a share which accrues to him by birth. If a person is entitled to get a share in the ancestral property, he cannot be excluded from it. A father cannot exclude his son from the ancestral property although he can gift his self acquired property to anyone. 

Ancestral property can not be divided or gifted or transferred, excluding the descendants/legal heirs having right to it.

For registering ancestral property, share and title of each family member must be clear.  The property is partitioned and transferred in the name of each descendant as per the share. The partition deed is registered, which confirms the ownership of the share.

Illegal registration can occur in numerous ways. Some of the most often used methods are:

  • Forgery – Signatures are forged, or fake documents are prepared
  • Impersonation- Someone else appears before the Registering Authorities as Owner
  • Misuse of POA – People give power of attorney to family members for effecting transactions on their behalf. POA can be misused. POA has to be very specific and clear.
  • Misrepresentation/Suppression of facts

NRIs are easy targets for illegal registration as:

  • They are not present in India physically for every transaction related to their property
  • Regular inspection of the property is not conducted.
  • Family members are generally given POA who misuse the same

Illegal Registration: The way out

The first step is the cancellation of illegal registration. It is advisable to get legal advice on the issue as cancellation requires careful analysis of the documents and filing an appropriate lawsuit in a civil court.

After cancellation, the next step is mutation.  It is essential to update the municipal records or land records so that the name of the owner is reflected correctly in public records.

Also Read: How to save title of your property from illegal occupants?

A police complaint can be filed for cheating and fraud.

A complaint also lies to the Revenue Authorities or concerned local bodies (Sub Registrar) bringing to their notice the illegal registration and requesting for cancellation of illegal registration.

Corruption in the office of registration is also a significant issue which leads to illegal registration of property. A criminal complaint can be filed with the police against the erring official.

How to cancel a registered document:

Once a document is registered, it is cancelled by filing a suit for cancellation in Civil Court.

The court satisfies itself regarding the illegality in the document.  Cancellation is not ordered at the whims and fancies of the party seeking it. The element of fraud, misrepresentation etc. which renders the document illegal must be present. There must be reasonable chances that if the document is not corrected, it will result in harm to the party.

The suit can be filed within three years from the date of knowledge of the fact of the document being illegal.

The court sends a copy of the decree passed in the lawsuit to the Registering Authorities which record the fact of cancellation of the registered documents in the record and correct the record.

Registering Authority is not empowered to cancel the registered document. The cancellation deed is also registered.