Probate Of A Will

Probate is the legal process to prove the validity of a will. In India, a probate of a will ensures that the assets of a deceased person will be distributed as per his/her wishes laid down in the will. Read on to know more about probate of a will in India, situations where probate is mandatory and probate process.

Probate of Will

Will is a legal document that specifies the person’s intention and wishes, which needs to be carried out after his/her death. The maker of the will is known as the testator/testatrix, and it can be revoked only during his/her lifetime.

Probate is defined under the Indian Succession Act, 1925 as –  “A copy of will certified under the seal of a court of competent jurisdiction with a grant of administration to the estate of the testator”. Thus, probate means that the court will grant power to the executors of the will to administer and distribute the assets of the deceased person as stated in the will.

The person who makes a will expresses his wishes to be executed after his death by certain persons named in the will. The persons named in the will to execute it are called its executors. If the executor is not mentioned in the will, the legal heris of the deceased person can appoint executors to administer the will. If the legal heirs are not able to appoint an executor, then they can make an appeal to the court to appoint one.

Probate can be granted only to the executor of the will. It is necessary if the will is for immovable assets in multiple states. Probate is conclusive proof that the will was executed validly, is genuine, and is the deceased’s last will.

What are the Circumstances Under Which Probate is Mandatory?

Under the Indian Succession Act 1925, probate is mandatory when all the below conditions are fulfilled-

• A Will within the geographical limits of the state of West Bengal and municipal limits of the metro cities of Chennai and Mumbai.
• The Will is made by a Hindu, Jain, Sikh or Buddhist residing in the state of West Bengal, Chennai or Mumbai.
• The Will deals with movable and/or immovable property situated in the state of West Bengal, Chennai or Mumbai.

Although the probate of the will is not mandatory in all other cases, it is advisable to obtain probate in cases where there is a probability of the validity of the will being challenged on any grounds in the future.

How to Apply for Probate of a Will?

The following is the process for obtaining the probate of a will-

• The executor of the will is required to file a petition and the original will to the district court for grant of probate. In the petition, the executor (who will be the petitioner in the case) has to mention the names and addresses of the deceased’s legal heirs so that notice can be issued to them.
• The executor will have to pay the applicable court fees depending upon the value of the assets.
• The petition must be filed before a district court. The pecuniary jurisdiction (Jurisdiction of the court depends on the petition’s monetary value) may require a higher court to issue probate for high-value immovable assets through an advocate.
• The next step is that the court asks the petitioner to establish the testator’s proof of death, proof that the testator’s will has been validly executed and confirm that this is the last will of the deceased.
• Next, the court calls for objections by issuing notice to the next of kin of the deceased to raise objections, if any, and also orders the publication of a citation of the probate petition on board to notify the general public.
• If there are no objections, then the court grants the probate.
• If there are objections, then the probate petition becomes the original suit, and the parties will have to lead evidence and argue the matter. The court will pass judgment in the probate suit based on the evidence and arguments.

The cost of obtaining probate varies from state to state as the District Court grants it. The fees depend on the value of the assets, which are the subject matter of the petition. In addition to court fees, the petitioner also has to bear the lawyer’s fees. These costs will be borne out of the estate of the deceased.

Probate Without a Will

In India, a probate is not required for intestate succession (Division of deceased person's assets to his/her legal heirs where no will is written by him/her). In such cases, the court will grant a Letter of Administration to the legal heirs instead of a probate to manage and distribute the assets of the deceased's person. 

The legal heirs must distribute the assests of the deceased person as per the applicable succession laws when there is no will, such as Hindu Succession Act, 1956, Indian Succession Act, 1925, or Muslim Personal Law. 

The probate of a will ensures the proper adminstration of the deceased person's assets as per his/her wishes written in the will. In India, the Indian Succession Act, 1925 governs the probate of the will. The executor named in the will can apply for probate in the district court. It is not mandatory to apply for probate of a will, except in certain cases. 

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Related Articles:
1. Hindu Succession Act
2. Succession Certificate
3. Legal Heir Certificate
4. Family Tree Certificate