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Probate Of A Will

Updated on:  

08 min read

Will is a legal document that specifies the person’s intention and wishes, which needs to be performed 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 the court of competent jurisdiction with a grant of administration of the estate of the testator”.

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.

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 under the following conditions-

  • A will within the geographical limits of the state of West Bengal and municipal limits of the metro cities of Chennai and Mumbai.
  • The above rule of mandatory probate is applicable if the will is made by a Hindu, Jain, Sikh, or Buddhist.
  • It is worthy to note that the above rule applies to a will that does not deal with any immovable property.

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 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 competent 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 lawyers fees. These costs will be borne out of the estate of the deceased.

Disclaimer: The materials provided herein are solely for information purposes. No attorney-client relationship is created when you access or use the site or the materials. The information presented on this site does not constitute legal or professional advice. It should not be relied upon for such purposes or used as a substitute for legal advice from an attorney licensed in your state.

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