Probate of Will – Will is a legal document that identifies the individual’s intention and desires, which has to be carried out after his/her death. The author of the will is referred to as the testator/testatrix and it can only be revoked in his/her lifetime.
Probate is in terms of the Indian Succession Act, 1925 – “A copy of will certified under the seal of the court of competent jurisdiction with a grant of administration of the estate of the testator”.
The individual who prepares a will gives his desires to be carried out after his demise by specific individuals mentioned in the will. The individuals mentioned in the will to carry out are referred to as its executors.
Probate can only be issued to the executor named in the will. It is required if the will is of immovable properties in several states. Probate is conclusive evidence that the will was validly executed, authentic and the last will of the deceased.
What are the Situations when Will Probate is Required?
Under the Indian Succession Act 1925, probate is required when all the following conditions are met-
- A Will within the territorial limits of the state of West Bengal and municipal areas of the metro cities of Chennai and Mumbai.
- The Will is executed by a Hindu, Jain, Sikh or Buddhist who is living in the state of West Bengal, Chennai or Mumbai.
- The Will addresses movable and/or immovable property located in the state of West Bengal, Chennai or Mumbai.
While probate of the will is not necessary in all other situations, it is recommended to procure probate where there is a likelihood of the will being challenged on any grounds in the future.
How to Apply for Probate of a Will?
The following is how one gets the probate of a will-
- The executor of the will must present a petition and the original will to the court for a grant of probate. In the petition, the executor (and also the petitioner in the case) must include the names and addresses of legal heirs of the deceased so that notice could be sent to them.
- The executor will be required to pay the relevant court fees based on the value of the property.
- The petition has to be brought before a competent court. The pecuniary jurisdiction (The jurisdiction of the court is determined by the monetary value of the petition) may demand a higher court to grant probate for valuable immovable property through an advocate.
- The second step is that the court requires the petitioner to prove the testator’s proof of death, evidence that the testator’s will has been validly executed and ascertain that this is the last will of the decedent.
- Finally, the court invites objections by directing notice to the next kin of the deceased person to file objections, if any and further directs the publication of a citation of the probate petition on board for notification to the general public.
- Where there are no objections, the court grants the probate.
- If objections are raised, then the probate petition is the original suit and the parties shall have to present evidence and argue the case. The court will render decision in the probate suit on the basis of the evidence and arguments.
The fee for obtaining probate differs from state to state as the District Court sanctions it. The fee is based on the value of the property, which is the subject matter of the petition. Apart from court fees, the petitioner also has to incur the lawyer’s fees. These expenses will be incurred out of the estate of the deceased person.
When Is Probate Required?
Probate is necessary in particular instances to implement a deceased person’s assets based on their testamentary wishes in a systematic order. Knowing where Probate must be obtained is necessary for working efficiently through the judicial process.
In India, Probate will be needed under the following situations:
- Where the Will has been executed by a Hindu, Buddhist, Sikh, Parsi or Jain within the geographical boundaries of Mumbai, Chennai or Kolkata.
- If the Will contains at least one immovable property located in either of these cities.
- It is important to mention here that although a registered Will provides an additional element of protection in case of contest by legal heirs, it has no relation with Probate.
A Probate action needs to be filed with the concerned court so that the Will should be deemed genuine or authentic. Thus, even if it might go a long way in simplifying the process, a Probate petition is still needed regardless of whether there is a registered Will or not.
Essential Documents For A Probate Application
- Original Will and Codicils (if any): The foundation of the Probate application is the original Will, which details the deceased’s wishes as to how assets are to be distributed. If there are codicils (alterations) to the Will, these should also be attached.
- Death Certificate of the Testator: It is an important step to provide the official death certificate of the Testator. This certificate is proof of the person’s death and is required for legal procedures.
- List of Legal Heirs/ Beneficiaries and Assets: It is a requirement to prepare a detailed list of assets, legal heirs and Beneficiaries. This document states who will inherit from the estate and forms part of the Probate application.
Filing the Application In The Relevant Court
Jurisdiction Determination: Determining the jurisdiction of the court where the Probate application should be filed is important. This is usually determined by the geographical location of the assets and the residence of the Testator at the time of death.
- Submission and Review: After the application is drafted, it is officially submitted to the determined court. The judicial bodies then review to confirm that all required documents and information are in place.
- The general guideline here is to seek Probate proceedings as early as possible following the Testator’s demise. No specific Probate laws govern the time frame; however, this might differ depending on the court of competent jurisdiction.
Probate vs Letter Of Administration
When it comes to settling the estate of the deceased, there are two important legal processes involved: Probate and Letter of Administration. It is important to know the differences between the two in order to assure the right distribution of the assets. In this chapter, we discuss the details of both of them and highlight in what cases they are applied.
Distinction Between Probate And Letter Of Administration
Probate
Definition: Probate is a judicial process that authenticates the genuineness of a Will and confers legal powers on the Executor mentioned in the Will to deal with the estate.
Applicability: Probate is required when the deceased had left a valid Will. It is mainly required to deal with and distribute assets according to the Testator’s intentions.
Role of Executor: The Executor, as named in the Will, is a key player in the Probate procedure. They ensure that the instructions in the Will are executed with precision.
Letter of Administration
Definition: A Letter of Administration is a document given by the court when the deceased passed away without a valid Will (intestate). It provides power to an Administrator, who is nominated by the court, to control the estate.
Applicability: In situations where the deceased did not have a Will, a Letter of Administration must be used to authorise a person to administer the distribution of assets in terms of the intestate succession laws.
Role of Administrator: The Administrator, as appointed by court, takes over the roles which would otherwise be exercised by an Executor in the Probate procedure.
The Role of Executor And Beneficiaries
In the Probate procedure, the Executor has an important function to fulfil by ensuring the Testator’s directives are obeyed in accordance with the provisions outlined in the Will. The Executor is the person designated by the Testator to manage the distribution of assets and the settlement of the estate. Their role includes a broad array of activities, such as instigating Probate, locating the Testator’s assets, informing Beneficiaries and creditors, asset distribution and more.
Rights And Claims Of Beneficiaries
Beneficiaries are those who are entitled to inherit from the estate in case the Testator died with a valid Will. If one does not leave a Will, his or her property and legal heirs are governed by laws of intestate succession and the assets are then divided accordingly. In intestate succession cases, the exact share may differ based on the family relationship and laws. Legal heirs have certain privileges, such as:
- Right to Inherit: Legal heirs possess a legally recognized right to inherit part of the deceased individual’s property.
- Right to Challenge the Will: If legal heirs/Beneficiaries feel that the Will is invalid or it has been prepared under questionable circumstances due to which they have been unjustly excluded, they are free to challenge the Will in a court of law.
- Right to Be Given a Copy of the Will: Beneficiaries are allowed to be given a copy of the Will upon the start of Probate proceedings. They have the right to know how their estate is to be divided.
An appreciation for the different duties of the Executor and legal heir rights is integral to being efficient in working within the Probate process. This guarantees the delivery of assets passes in a rightful and methodical fashion, under the intent of the Testator or statutory provisions of succession.
Frequently Asked Questions
Q1. What is probate of a will in India?
Ans1. Probate of a will in India is a legal process under the Indian Succession Act, 1925, through which a court certifies the validity of a deceased person’s will and grants the executor the authority to administer the estate.
Q2. When is probate required in India?
Ans2. Probate is required when a will is executed by a Hindu, Sikh, Jain or Buddhist and involves property located in the cities of Mumbai, Chennai or Kolkata, as per the Indian Succession Act, 1925.
Q3. Who can apply for probate of a will?
Ans3. Only the executor named in the will can apply for probate by submitting a petition to the competent court along with the original will and other required documents.
Q4. What are the documents needed for a probate application?
Ans4. Essential documents include the original will and any codicils, the testator’s death certificate and a list of legal heirs, beneficiaries and assets.
Q5. What is the difference between probate and a letter of administration?
Ans5. Probate is granted when a valid will exists and empowers the named executor, while a letter of administration is issued by the court when there is no will, authorizing an appointed administrator to manage the estate.
Q6. How long does it take to get probate in India?
Ans6. The probate process may take several months, depending on court workload, objections raised and the completeness of the submitted documentation.
Q7. Is probate necessary for a registered will in India?
Ans7. Yes, probate may still be necessary even for a registered will, especially when it involves immovable property in Mumbai, Chennai or Kolkata or if the will might be challenged.
Q8. Can a will be challenged during the probate process?
Ans8. Yes, legal heirs or interested parties can challenge a will on grounds such as undue influence, lack of testamentary capacity or fraud, by filing objections during probate proceedings.
Q9. What is the cost of obtaining probate in India?
Ans9. The cost varies by state and depends on the value of the estate. It includes court fees based on property valuation and legal fees paid to the advocate handling the petition.
Q10. What is the role of an executor in the probate process?
Ans10. The executor is responsible for proving the will in court, managing and distributing the estate’s assets, paying any liabilities and ensuring the testator’s wishes are honored as per the will.
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