Probate of Will

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 Document 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 Document 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.

Documents 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 Documents 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.

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 Documents to verify the genuineness of the will such as the death certificate of the testator and other essential Documents. Submission of such Documents will prove the credibility of the will.

• After the court receives the Documents, the authority is required to verify the information mentioned in the Documents. 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.