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Overview of Probate of Will

A will has been defined in the Indian Succession Act under Section 2 (h). It is defined as a “Legal declaration of the intention of a person with respect to his property, which he desires to take effect after his death”. In general terms, a will is a legally written necessary paper through which a person distributes his/her property to family members, relatives and friends, etc after death. The person who makes a will is called a testator/testatrix.

A will takes effect after the death of the testator. Legality and validity of a will are proved by the signatures of the testator and the witnesses in front of whom the testator signed the will before death. A probate of will increase the authenticity of a will.

A probate is a certified copy of a will and is considered an official necessary paper which acts as valid proof in increasing the credibility of a will. An executor approaches the court for probate of will so that he/she can get the authority to execute the will and distribute and dispose of the property of the deceased to the mentioned beneficiaries. A probate of will adds legal character to the will.

In general terms, it is a legal process which smoothens the distribution of the property of the testator after death to his/her legal heirs and the mentioned beneficiaries in the will. The executor is also responsible to pay off the debts taken by the testator before death.

A probate of the will is applied by the executor after a week of the death of the testator. The whole probate process takes months to complete. The authority puts information to the general public to invite objections related to the will, if there are any objections the time required for the process is longer than usual depending on the seriousness of the objection raised.

Requirement of Probate in case of Will

It is not mandatory to probate a will as there are certain cases where the probate is unnecessary as per the rules made by the respective states. One such situation, when the probate of will is not necessary for distribution of estate, is where the property is owned jointly by the testator and his/her spouse or children, and the property is transferred automatically to the surviving owner by operation of law.

A person is required to follow the process of probate when there is an issue with the existing will or to provide credibility to the will of the deceased.

Advantages of a probated Will

There are several advantages when a person gets the will probated by a competent authority. These are as follows:

  • It protects the small estates of the deceased from being misused.
  • It helps in the execution of the will as per the directions of the testator and in making the right decisions in favour of the beneficiaries who are eligible to get the inherited property.
  • It is useful for the parties who are willing to publicize the distribution of property in the will.
  • It also helps in paying off all the creditors within the time period of 90 days.
  • A probated will can also help in challenging the claim of a creditor in the competent court when the executor feels that the creditor has raised a false claim.
  • It also provides an opportunity for the court to resolve the matter related to a disputed will.
  • A probated will Probate of a Will increases the credibility of a will after the death of the testator and provides a right to the executor for executing the will in favour of the beneficiaries.

Checklist

The executor needs to keep in mind certain things for probate of the will. These are as follows:

  • The will must be made by the testator in favour of the applicants.
  • A will should be duly registered.
  • It is important for the applicant/executor to obtain the death certificate of the testator.
  • The executor is under an obligation to pay the required court fee as defined under the Court Fees Act.
  • The competent authority to file an application for probate of the will must be clearly identified.

Necessary Papers Required for Probate of Will

When the applicant submits the application for probate of will before the competent authority, he/she is required to submit the below-mentioned necessary papers to prove that:

  • The testator who has made the will is not alive.
  • The will is true and the last will of the testator.
  • The distribution of the estate of the testator mentioned in the will by the testator must be mentioned by the free will and consent of the testator. It means that there should be no undue influence, fraud or coercion on the testator for making a will.

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What is the Procedure for Will Probate?

The process of probate of the will is divided into 4 easy steps:

  • In the very first step, a legal heir or the executor is required to file an application for probate of will to the district judge by way of a probate petition. The petition must be duly signed and verified by the applicant. The probate petition must be made as per the format prescribed under the Code of Civil Procedure of 1908. The executor needs to file an application after 7 days of the death of the testator.
  • After completing the first step, the executor is required to send the application to the High Court in which the property of the deceased is situated. The lawyers from Corpbiz can prepare the application which is required to be submitted.

The executor is also required to submit necessary papers to verify the genuineness of the will such as the death certificate of the testator and other essential necessary papers. Submission of such necessary papers will prove the credibility of the will.

  • After the court receives the necessary papers, the authority is required to verify the information mentioned in the necessary papers. The nearest family member of the deceased is invited to claim the probate. It publishes an advertisement in a local newspaper to invite interested parties to raise objections, if any. After completion of 30 days, if there are no objections received, the court issues the probate.
  • After issuance of probate, the executor or administrator is under an obligation to dispose of and distribute the property of the deceased person as per his/her intentions mentioned in the will. the executor then distributes the estate of the deceased to the beneficiaries whose names have been mentioned in the will.

Is it mandatory to probate a will?

People usually don’t have much idea whether it is mandatory to probate a will or not. As per the provisions stated under the Indian Succession Act of 1925 a probate of the will is mandatory under certain circumstances. These are as follows:

Whenever a will is made by a person who is living at a place which was previously under the rule of the Lieutenant-Governor of Bengal or under the local limits of High Courts of Judicature at Madras and Bombay, the probate of the will is mandatory. In the present times, these places are – the state of West Bengal, the municipal limits of cities such as Mumbai and Chennai. If a will is being made by a person living in the above-mentioned places, it is mandatory for probate of will even if the testator does not own an immovable property to be included in the will.

In case a will is made by a person belonging to the Hindu, Sikh, Jain or Buddhist religion, it is mandatory to probate a will.

If a will does not fall under the above-stated conditions, it is not mandatory for the executor/administrator to probate a will. Also, no person can be stopped from applying for probate of a will in situations where it is not mandatory. Thus, it is suggested to the people to obtain probate to avoid any chances of interested parties claiming the will to be invalid on several grounds.

Frequently Asked Questions

important for the distribution and transfer of the estate of the deceased by the executor to the beneficiaries of a will.

The executor can file an application for probate of the will in the city where the testator was living at the time of his/her death. The district court of such a city where the deceased last lived will be the competent court for filing an application.

The probate assets include the assets which are solely owned by the deceased. It includes the movable and immovable property of the deceased person. It also includes properties such as furniture, jewellery, other electrical appliances and automobiles, etc.

It is not possible for a will to be probated before the death of the testator who is making the will. It is the responsibility of the executor to file an application for probate of the will after the death of the deceased.

A person who has been appointed and is responsible for the execution of the will for disposal and distribution of the estate of the testator after his/her death as per the testator’s wish is called an executor of the will. It is not mandatory for a testator to mention the name of a person as executor. But is usually suggested to mention the name of a person as an executor so that a will can be properly executed as per the wish and intentions of the deceased person.

Whenever the testator has not mentioned the name of an executor in the will, the legal heirs have the authority to appoint a person as the administrator of the will. The administrator will have all the rights which are available to the executor for the disposal and distribution of the estate of the deceased. If the legal heirs are unable to mutually agree on a person to be named as administrator of the will, then any one legal heir can approach the court for appointment of a person as administrator of the will.

The probate of will has been defined under the Indian Succession Act of 1925 as a certified copy of a will bearing the seal of the court. The seal of the court depicts that the authority has declared the will to be valid and genuine and is considered the last and final will of the deceased. Though it is not mandatory to probate a will, it is highly suggested to probate the will to avoid any disputes related to the disposal and distribution of the property of the deceased.

No, there is no law related to the requirement of probate of a will in all states of India. The probate is governed by the provisions of the Indian Succession Act of 1925 and a few states have their own laws with regard to the need for probate of the will.

Yes. It is important to publish an advertisement in a local newspaper with regard to the registration of probate so that interested parties such as creditors and other parties can have information about the probate proceedings. The person is required to make an advertisement after following the relevant rules and regulations.

The executor who has been appointed for the execution of a will can apply for probate of will after 7 days from the deceased’s death. It takes at least six months to complete the process of probate.

The fee required to be paid for probate of a will is different from state to state as the District Court has the power to grant it. The amount of the fee is also affected by the value of the assets of the deceased. It is the responsibility of the petitioner to bear the required fee. The costs are covered out of the estate of the deceased person.

Yes, a will is valid even without the probate. A probate of will is required to increase the genuineness of the court.

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