Hi.... My mother is in abroad with me, And she wants to draft a will to share or gift her property with my only sister and myself in India. kindly suggest what is the correct way of executing this transfer of property.

Ans: It is always better to get the property transmitted in your name with registration at the registrar's office. This will avoid difficulties for your family.

Ans: Before answering this question, you may need to look the will and see whether entire portion is in your name or not. Typically, when father passes away, the share goes to mother and thereafter to the children. Assuming, it is in your name, you will need to get a probate done considering the property is in Maharashtra.

Please reach out to me if you need any assistance, I can guide you to relevant connects.

Ans: It's essential to consult with a legal professional to get accurate advice tailored to your specific situation and the laws applicable in India.

Here are some general steps and considerations:

Probate of Will:

If your father left a will, the first step would typically be to probate the will. Probate is a legal process where the court validates the will and gives legal authority to the executor (you, in this case) to distribute the assets according to the terms of the will. Unregistered wills can also be probated, but the process may vary.

Legal Assistance:

Consult with a lawyer who specialises in property and inheritance laws. They can guide you through the specific steps and requirements for probating an unregistered will and transferring the property.

Transfer of Ownership:

Once the will is probated, the legal process for transferring the property into your name and your sister's name can begin. This may involve updating the property records and obtaining a new title deed.

Inheritance Laws:

Be aware of any local inheritance laws that may affect the distribution of property. In some cases, there may be legal provisions for the surviving spouse or other heirs.
 
Mutual Agreement:

If you and your sister both agree on the distribution as per your father's will, the process may be smoother. You might consider a family settlement deed or another legal document to formalise the agreement.

Update Property Records:

Ensure that the property records are updated with the appropriate authorities, reflecting the change in ownership. This may involve submitting the probated will and other necessary documents.

Tax Implications:

Consider any tax implications associated with the transfer of property. In some cases, there may be stamp duty or other taxes involved.

Legal Heir Certificate:

Obtain a legal heir certificate if required, as it may be necessary for certain legal procedures related to inheritance.

Remember, the specific steps and requirements can vary, and it's crucial to seek professional legal advice to ensure a smooth and legally valid transfer of the property.

Consult with a good lawyer who can guide you through the process based on the laws applicable in India.

Ans: Yes, your mother can get her will registered for the residential property, allocating half share to each of her sons. This process involves several steps to ensure that the will is legally valid and that there are no disputes in the future.

Steps to Register the Will
Drafting the Will: The will should clearly state her intention to divide the property equally between both sons. It should include specific details about the property, such as its location, registration details, and any other pertinent information.

Appointment of Executors: Your mother should appoint one or more executors in her will. Executors are responsible for carrying out the terms of the will. It is advisable to choose trustworthy and impartial executors.

Witnesses: The will must be signed by your mother in the presence of at least two witnesses who are not beneficiaries in the will. The witnesses must also sign the will, confirming that they saw her sign it.

Registration of the Will: Although not mandatory, registering the will with the local sub-registrar’s office is highly recommended. This provides a legal safeguard against future disputes. The process involves:

Visiting the local sub-registrar’s office.
Submitting the will along with required documents (proof of identity, proof of residence, etc.).
Paying the registration fee.
The sub-registrar will then record and register the will.
Additional Documentation and Steps to Prevent Future Disputes
To further ensure there are no disputes in the future, consider the following additional steps:

Family Settlement Agreement: If both sons agree, your mother can draft a family settlement agreement. This agreement can state that both sons have agreed to the equal division of the property and that they will respect the terms of the will. This should be signed by all parties involved and can be notarized for added legal strength.

Declaration of No Objection: Both sons can sign a No Objection Certificate (NOC) stating they have no objections to the property being divided equally as per their mother’s will. This can be attached to the will or kept as a separate

Consulting a Lawyer: It is advisable to consult with a property lawyer to ensure that all legal formalities are correctly followed. The lawyer can help draft the will, the family settlement agreement, and the NOC to ensure they are legally binding.

Updating Property Records: Once the will is registered, ensure that the property records reflect your mother’s ownership clearly. This will prevent any claims of ownership or legal complications in the future.

Informing Family Members: Make sure that all family members, especially the beneficiaries, are aware of the will and its contents. Transparency can often prevent misunderstandings and disputes.

Summary
Your mother can proceed with registering her will to divide her property equally between her two sons. The will must be drafted properly, witnessed, and ideally registered with the sub-registrar’s office. Additional steps, such as a family settlement agreement and a No Objection Certificate, can provide further assurance that there will be no disputes in the future.

By following these steps and seeking professional legal advice, your mother can ensure her wishes are respected and that her sons can receive their shares without any legal complications.

Best Regards,

K. Ramalingam, MBA, CFP,

Chief Financial Planner,

www.holisticinvestment.in