Assets of an individual pass on via two ways after his/her demise. The first way is a Will and the second is automatic- in which a person does not leave any Will. It can also happen concerning the assets that have not been bequeathed via the Will.
In such scenarios, the entire estate of that person passes on to the legal heirs according to the applicable law. In this article, we will explain the probate of will, why it’s essential, the scenarios under which it is imperative, & how to obtain the same.
What is a Probate in Legal Context?
In general, It’s a legal copy of Will, which acts as official proof. As per the Indian Succession Act, 1925, the term ‘Probate’ implies the copy of a Will, authenticated under the Court’s seal of competent jurisdiction, with a grant of administration to the testator’s estate.
The person, who prepares a Will, expresses his/her desires to be executed after his/her demise by a certain person mentioned in the Will. The person entitled to execute the Will is known as the executors. Probate of a Will is a legal way for certifying the Will under the Court’s seal. Probate implies that the Will was executed authentically & is legitimate and the Last Will of the deceased.
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Legal Implications Regarding the Probate of a Will
There is considerable unawareness among the general public about the scenarios under which a Will is compulsory. As per the Indian Succession Act, 1925, It’s mandatory when a Will is prepared in a location under the rule of local limits of the civil jurisdiction of the High Courts of Judicature at Bombay & Madras or under the rule of the Lieutenant-Governor of Bengal.
The provisions refers to the locations were acknowledged at the period of enactment of the Indian Succession Act, 1925. These can be acknowledged to mean the state of West Bengal & municipal areas of metro cities of Mumbai & Chennai, respectively, in present days.
The rule mentioned above is applicable if the Will is made by a Hindu, Sikh, Jain, or Buddhist. It’s worth noting that Probate of a Will is compulsory if the Will is within the limit of said places, even if the Will is not about any immovable property.
So, unless encompassed by any of these three scenarios, the probate of a Will is not compulsory. But there is no limitation in law to obtain a probate of a Will, even if the given laws do not mandate it. Obtaining Probate of a Will is beneficial, and it’s recommended in scenarios where there is a chance of a dispute in the future on any ground.
Many housing societies do not prefer the probate for the transfer of property in the name of persons to whom the property has been bequeathed, as the office bearers are unaware that It’s compulsory in these places. For the properties located in the areas above, the authorities or the housing societies who are entitled to register the owner’s names may demand probate for the property transfer.
Applicability of a Probate of a Will in India
The probate application can only be made by the executor/s mentioned in the Will. The executor has to fill this application for the probate’s issuance under the Court’s seal, authenticating the Will. The case of multiple executors, the probate can be issued to them together or as and when the said application is made. In case no executor is designated under the Will, the Court shall grant the simple letter of administration in place of probate.
How Can One Apply for a Probate?
The executor must apply to the Court via the prescribed form for the issuance of Probate of a Will. The executor has affixed the Will with the application. In this application, the executor must enclose the names & addresses of the deceased’s legal heirs for the notice’s issuance before the Will is probated.
The Court typically needs petitioners to provide the facts of the testator’s death with evidence such as a death certificate issued by the local authorities. The executors are also needed that the Will produced before the honorable Court is the deceased’s last Will. The petitioners are also required to ensure that the testator authentically executed the Will.
How Court Proceeds with the Grant of a Probate?
Upon the application submission, it is verified, and then notices are rolled out to the legal heirs of the deceased regarding the fact that the probate application having been by the Court. A general notice is also issued, rendering a chance to raise any objections regarding the probate’s grant. In case the Court receives any objection against the issuance of the probate, then the applications shall turn into a testamentary suit.
- File a probate petition before the district judge signed by or on behalf of the applicant.
- Forward the probate application to the High Court and the requested documentation to verify Will’s authenticity.
- After reviewing all the details, the Court shall invite the testator’s nearest kin for claiming the probate.
- The Court will then issues a legal notice at relevant avenues to welcome any objection.
- After 30 days, if the notice remains untouched with any objection, the honorable Court will issue the probate.
Cost of Obtaining a Probate of a Will
Since a high court confers the probate, a court fee shall apply based on the asset’s values, which are the subject matter of the petition. The court fees differ from state to state. In Maharashtra, it is 2% to 7.5%, based on the slabs, subject to a max. of INR 75,000. Apart from the court fee, you also have to confront the lawyer’s fees.
Probate of a Will becomes extremely necessary in cases where the likelihood of dispute on the part of the Will is significantly higher. The probate laid a legal ground for a Will and protected the individual’s interest mentioned in the Will. It’s a term associated with a legal process under which a will is examined to check whether it is legitimate and valid.
It’s also regarded as the legal administering of a deceased individual’s Will or the estate of a deceased individual without a will. Connect with CorpBiz’s associates to get the precise detail regarding the Probate of a Will.
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