Unlock the legal intricacies, Our blog will make you understand the probate of will in India, ensuring a seamless process for authenticating and transferring assets
Introduction
The Supreme Court in its judgment dated 19 May 2020 reiterated the law related to probate and cases of suspicious execution of a Will. The Court said, if multiple suspicious circumstances surround the execution of a will, a combined effect of those circumstances can be enough to deny the grant of a probate. Probate In India: Definition, Importance & Application
A will is a written document in which a person specifies how his or her possessions should be dispersed after death. In some cases — and only in particular jurisdictions, such as Mumbai, Kolkota, and Chennai — the executor of the will may be required to petition for probate in order to legitimize it.
What is a Probate?
According to the Indian Succession Act, 1925 a probate is official proof of a will. A probate is issued to the executor or the person who is authorized to implement or execute the will. It is infact, a probate which provides legal character to a will.
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A probate, as defined in the India Sucessession Act, 1925, is – ‘A copy of will certified under the seal of a court of competent jurisdiction with grant of administration of the estate of testator’. |
Probates are issued to the executors of a will, in order to authorize them to legally execute the same through a seal of approval from the court. If there are no executors named in the will, the court will just issue a basic letter of administration rather than a probate.
When a probate is applied for and the will is verified, the court retains the original document and issues the executor with a certificate certifying its authenticity (the probate) as well as a copy of the will.
Importance of a Probate
Now, that it is established that a probate of will in India or the executor of the will to transfer the properties in the names of individuals to whom the property is bequeathed. Let us look into the reasons as to why getting a probate might become crucial.
- Assume an individual is bequeathed a property within a society and wishes to occupy it. Because the owner, according to the society record, is still the person who has died, unless and until the executor presents a probate indicating permission to transfer the property, the society may refuse the transfer.
- A probate is also issued for a will or any codicil attached, by persons of Indian Hindu, Parsis, Buddhists, Sikhs or Jains faith primarily in the cities of Chennai, Kolkata and Mumbai.
- In case a will is made outside these territories, but for assets situated inside, one would still require a Probate.
| A probate is completely different from a letter of administration, which is allotted when a will does not name an executor or a will is not made by the deceased person. |
Eligibility to Make a Will:
To create a valid will, the testator must meet certain criteria. Firstly, the testator should be of sound mind, meaning they have the mental capacity to understand the consequences of making a will. Additionally, the testator must be at least 18 years old unless they are married, in which case the minimum age requirement is waived. The decision to make a will should be voluntary, without any undue influence or coercion from others.
Essential Elements of a Will:
Testator’s Identity:
Clearly identifying the testator ensures there is no ambiguity about who is making the will.
Declaration of Sound Mind:
Including a statement confirming the testator’s mental capacity is crucial for legal validity.
List of Beneficiaries:
Clearly stating who will inherit the assets and the specific shares or portions they are entitled to.
Executor Appointment:
Appointing an executor who will be responsible for executing the will and ensuring the testator’s wishes are carried out.
Asset Details:
Providing a comprehensive list of assets along with details on how they should be distributed among the beneficiaries.
Signature and Witnesses:
The testator must sign the will in the presence of two witnesses who are not beneficiaries. Their role is to attest to the testator’s signature.
Date of Execution:
Mentioning the date when the will is executed adds a temporal reference to the document.
Reasons to Probate a Will:
Legal Validation:
Probate is the legal process that validates the will, confirming its authenticity and compliance with legal requirements.
Executor’s Authority:
Probate grants legal authority to the executor, empowering them to manage and distribute the assets as per the will’s provisions.
Asset Transfer:
It facilitates the legal transfer of assets from the deceased person to the beneficiaries outlined in the will.
Challenge Prevention:
Probate minimizes the risk of challenges to the will’s validity, as the court’s approval lends credibility to the document.
Court Approval:
The court’s approval during probate ensures that the entire process adheres to legal procedures and regulations.
Application for Probate
A probate is granted in accordance with Sections 57 and 213 of the Indian Succession Act. The High Court grants probates to the executor or executors (in succession, if more than one is nominated) with a copy of the will attached.
After seven days of the Testator’s death, one may apply for probate (or the person who makes the will and is the owner of the property to be distributed).
The application for probate must be presented to the High Court, under whose jurisdiction the property may fall under, with the assistance of a lawyer or advocate.
| Although a lower court may issue a probate for low-value immovable assets, a probate from a higher court is required for high-value immovable assets. |
Documents Required for Probate
While submitting a probate application, you need to submit documents that prove that:
- The will is genuine and is the last will made by the testator
- The will is validly executed by the free will of the testator
- The testator is no longer alive
Grant of Probate
Once the application is submitted, it will be validated by the authorities, and letters (notifications) will be sent to the deceased’s nearest family informing them about the probate issue. A general notice is also published for the public to examine, allowing them the option to oppose to the grant of probate.
Thereafter the probate is issued if no objections are received by any kin or the general public. However, this is only done after the court fees are paid. The court fees here depends upon the value of the immovable assets.
Probate: The Takeaway
Even though getting a probate is time-consuming and may cost you a small proportion of the inheritance (court fees + lawyer’s fees), it is absolutely necessary. Especially if there are several assets to manage and those immovable properties are located in different states.
Furthermore, getting a probate is a completely fool-proof method of managing situation wherein a will is in question and is absolutely necessary when dealing with high-value properties.
Get in touch with the advocates at Vakilsearch, if you are looking to obtain a probate. Our team of experts are proficient at all things succession, wills and property related.
FAQ
When is probate required in India?
Probate is required when dealing with the estate of a deceased person, especially for assets like property and financial holdings.
What is the meaning of probate in India?
Probate is a legal process to validate and execute a deceased person's will, ensuring the legal transfer of assets to the beneficiaries.
How long does it take to probate a will in India?
The duration varies but typically takes several months, depending on the complexity of the estate and the efficiency of the legal process.
What is probate of will in Indian law?
Probate of a will in Indian law refers to the legal validation and execution process conducted by a court to ensure the will's authenticity and compliance with legal requirements.
What assets require probate in India?
Real estate, bank accounts, and other financial assets often require probate for a legal transfer of ownership.
Who can apply for probate in India?
The executor named in the will or any person with a valid interest can apply for probate.
Are there any time limits for filing probate in India?
There is no strict time limit, but it is advisable to apply for probate at the earliest to expedite the legal process.
Can probate be avoided in India?
Certain assets, like jointly owned property, may bypass probate. However, it depends on the nature and structure of the assets.
What happens if there is no will in India?
In the absence of a will, the legal heirs inherit the deceased person's assets based on the applicable succession laws.
Are there taxes associated with probate in India?
Inheritance tax is not prevalent in India, but there may be other taxes associated with transferring specific assets.
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