The Probate of a Will
In legal terms, probate is the legal process by which a will is validated by the court as the last will of a deceased testator. In simple terms, probate means a copy of certification from the court or competent jurisdiction that a will can be transferred to a beneficiary of the will.
Benefits Of A Probate Will
- It helps protect small estates.
- It gives direction to cases where there is no will in place so that the right beneficiary gets the testator’s inheritance.
- The probate process is beneficial to those who want to publicize the distribution of the will.
- Probate gives you the chance to close out all creditors to the estate within a 90-day period.
- It can be used as a tool to challenge a creditor’s claim in a court of law if you think that the creditor has falsely made a claim.
- Probate offers the court the opportunity to handle a disputed will.
- Probate of a Will establishes the authenticity of a will after the death of the testator and shows the executors and legal heirs to the content of the will.
Checklist For A Probate Will
- The will must be drawn in favour of the applicants or applicant, by the testator of a will.
- Will should be registered, and subject to probate should not be revoked by the testator.
- The death certificate of the testator must be obtained by the applicant.
- Court fees duly paid in accordance with the Court Fees Act.
- The appropriate jurisdiction to file the application shall be identified.
What Is The Procedure For Getting A Probate Will?
While you might think that the process for a probate is difficult and time consuming, it is not. The entire process is done in 4 steps, which are:
Prepare the Application
The first step is to prepare an application to the District Judge via a petition duly signed and verified by or on behalf of the applicant, in the format prescribed under the Code of Civil Procedure, 1908. This should be done 7 days after the testator’s death.
Submit the Application
The application needs to be prepared by lawyers and sent to the high court, under the jurisdiction of the property. In some cases, a lower court may accept the application.
Certain documents are required to be submitted while applying for probate. You need to show the documents that prove that the will is genuine. You will also need to show the death certificate of the testator, and submit a document to prove that the will was executed by the testator as per his/her own free will.
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Once the court receives the application, it verifies all details and issues an invitation letter to the nearest kin of the deceased to claim the probate. A letter is also stuck at prominent places for public view and to invite objections, in case of any. If after 30 days, there is no objection from the kin or the public, the probate is issued.
What Are The Documents Required For A Probate?
- A copy of the will, if one was created.
- The municipal death certificate of the testator.
- A letter stating that the testator was of sound mind when preparing the final will.
- Proof that the will has been executed by the testator.
FAQs on Probate of Will
Probate is required when a testator owns the full estate or property. It is a must in cases where there are no co-owners to the property. By law, probate is mandatory for a testator’s property to be transferred in the names of his/her beneficiaries.
It generally takes around six to nine months for probate to go through court. However, if there are any objections during the process, it may take more time, depending on the severity of the objection and investigations required.
In cases where the surviving spouse was a co-owner of all the property there is no need to go through probate in court. But if the surviving spouse is not a co-owner, probate in court is necessary for the transfer of property.
If a beneficiary dies during the probate period, the assets transferred to his/her name is transferred to the deceased beneficiary’s, surviving beneficiaries.
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