Is a Probate mandatory to transfer property?

Last Updated at: November 23, 2020
10590
In June, 2020, the Supreme Court has said that a farmer cannot transfer his agriculture land through a will to a person who is not a farmer. A three-judge bench of the apex court upheld the order passed by the division bench of the Gujarat High Court in 2009 which held all such transfers invalid.  

 

One of the primary purposes of the laws governing succession is to give effect to the deceased person’s intention. The law, within its framework, tries to honour the will of the person made with complete freedom and knowledge. However, sometimes the validity of the Will may be challenged in a court of law. This is when a Will probate is required to prove the existence and enforceability of a Will.

The word probate is derived from the Latin phrase ‘probare’, which means to have proven. A probate is a legal recognition given to a Will regarding its genuineness and legality, declared by a competent court. An Executor is a person who steps in the shoes of the deceased to manage and distribute the property among heirs. An executor may either be named in the Will or be appointed by the court for this purpose.

Is a probate compulsorily required?

No, not all Wills require a probate to be obtained. However, obtaining a probate has distinct advantages besides being a legal necessity in some cases. For example, in cases of dispute between siblings, the authenticity of the Will may be questioned by one of the siblings at a later stage by producing an alternate, Will. A probate puts an end to this by ruling on the fundamental validity of the Will. The following are the circumstances where a Will needs to be probated by the court-

  • Wills that are made in the areas of Bengal, Bihar, Orissa and Assam and within the local limits of the ordinary original civil jurisdiction of the High Courts of Madras and Bombay.
  • Wills that are made outside these territories but where the property is situated in these territories also require a probate.
  • The Indian Succession Act also mentions that a probate is only required for Wills made by Hindu Buddhist, Sikh or Jains. Thus, no probate is required for Wills made by Muslims.

What happens when the probate is not obtained?

A Will that requires to be probated loses its legal enforceability if it is not probated by a court of competent jurisdiction. Thus, in such a scenario, the successors stand to lose their claim over the inherited property and the executors of the Will do no possess the power to take any action towards claiming ownership.

Get free legal advice today

Who is under the responsibility to get a probate issued?

It is the Administrator or Executor of a Will who must approach the court with the probate application. While it is a common practice to appoint friends and family as the executors of the Will as people may naturally trust them more, it is important to note that getting a probate or paying taxes relating to the property, especially if there are multiple assets, it may be a good idea to appoint someone who has legal, tax-related acumen. This is also why there has been an increase in professional executorship, where a trained manager may take care of the administrative difficulties of getting a probate. However, in the absence of the Executor being named in the Will, the legatees or the beneficiaries under the Will could also seek probate of the Will.

Documents Required and Fees Payable:

Since every state where probate is required has its own Court Fee and Suits Valuation Act, the exact fee will be determined by the state, but the fee is calculated as a percentage of the value of assets. Some of the documents required include –

  • Original Will of the deceased
  • Death Certificate
  • Title Deeds pertaining to the immovable property mentioned in the Will
  • Documents pertaining to the movables mentioned in the Will

How does the Court decide the validity of the Will?

When a petition for grant of a probate is filed before the Principal Court of Original Jurisdiction or before the High Court (as it has concurrent jurisdiction), the court issues a notice at the initial stage and a newspaper publication of the same has to be done. In case such a petition is contested, it is converted into a regular suit where parties would present detailed arguments and evidence is examined, after which the court delivers the judgment on the Will.

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Is a Probate mandatory to transfer property?

10590
In June, 2020, the Supreme Court has said that a farmer cannot transfer his agriculture land through a will to a person who is not a farmer. A three-judge bench of the apex court upheld the order passed by the division bench of the Gujarat High Court in 2009 which held all such transfers invalid.  

 

One of the primary purposes of the laws governing succession is to give effect to the deceased person’s intention. The law, within its framework, tries to honour the will of the person made with complete freedom and knowledge. However, sometimes the validity of the Will may be challenged in a court of law. This is when a Will probate is required to prove the existence and enforceability of a Will.

The word probate is derived from the Latin phrase ‘probare’, which means to have proven. A probate is a legal recognition given to a Will regarding its genuineness and legality, declared by a competent court. An Executor is a person who steps in the shoes of the deceased to manage and distribute the property among heirs. An executor may either be named in the Will or be appointed by the court for this purpose.

Is a probate compulsorily required?

No, not all Wills require a probate to be obtained. However, obtaining a probate has distinct advantages besides being a legal necessity in some cases. For example, in cases of dispute between siblings, the authenticity of the Will may be questioned by one of the siblings at a later stage by producing an alternate, Will. A probate puts an end to this by ruling on the fundamental validity of the Will. The following are the circumstances where a Will needs to be probated by the court-

  • Wills that are made in the areas of Bengal, Bihar, Orissa and Assam and within the local limits of the ordinary original civil jurisdiction of the High Courts of Madras and Bombay.
  • Wills that are made outside these territories but where the property is situated in these territories also require a probate.
  • The Indian Succession Act also mentions that a probate is only required for Wills made by Hindu Buddhist, Sikh or Jains. Thus, no probate is required for Wills made by Muslims.

What happens when the probate is not obtained?

A Will that requires to be probated loses its legal enforceability if it is not probated by a court of competent jurisdiction. Thus, in such a scenario, the successors stand to lose their claim over the inherited property and the executors of the Will do no possess the power to take any action towards claiming ownership.

Get free legal advice today

Who is under the responsibility to get a probate issued?

It is the Administrator or Executor of a Will who must approach the court with the probate application. While it is a common practice to appoint friends and family as the executors of the Will as people may naturally trust them more, it is important to note that getting a probate or paying taxes relating to the property, especially if there are multiple assets, it may be a good idea to appoint someone who has legal, tax-related acumen. This is also why there has been an increase in professional executorship, where a trained manager may take care of the administrative difficulties of getting a probate. However, in the absence of the Executor being named in the Will, the legatees or the beneficiaries under the Will could also seek probate of the Will.

Documents Required and Fees Payable:

Since every state where probate is required has its own Court Fee and Suits Valuation Act, the exact fee will be determined by the state, but the fee is calculated as a percentage of the value of assets. Some of the documents required include –

  • Original Will of the deceased
  • Death Certificate
  • Title Deeds pertaining to the immovable property mentioned in the Will
  • Documents pertaining to the movables mentioned in the Will

How does the Court decide the validity of the Will?

When a petition for grant of a probate is filed before the Principal Court of Original Jurisdiction or before the High Court (as it has concurrent jurisdiction), the court issues a notice at the initial stage and a newspaper publication of the same has to be done. In case such a petition is contested, it is converted into a regular suit where parties would present detailed arguments and evidence is examined, after which the court delivers the judgment on the Will.

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Avani Mishra is a graduate in law from the National Law Institute University, Bhopal. She qualified the Company Secretary course with an All India Rank 1 and is a recipient of the President’s Gold Medal for her academic distinctions. She also holds a B.Com degree with a specialization in Corporate Affairs and Administration.