Law of Wills -- Importance of Probate

 

Will and Probate

 

Background: In the previous blog we have discussed about – what is a Will and its essential characteristics, who can make a Will, care to be taken while drafting a Will and so on. In today’s blog we will discuss about what is a Probate and how can it be obtained.

We have already seen that a Will is a legal declaration made by the testator/testatrix with respect to his property, which he desires to take effect after his death. It is a legal instrument by which a person makes a disposition of his property to take effect after his death.

It is to be noted that in metro cities like Mumbai, Chennai and Kolkata one needs to apply for probate. Also, sometimes the situations may so arise (we will discuss the situations subsequently), wherein the executor of the Will may have to apply for a probate in other areas as well.

 

What is a Probate and its importance?

In simple language, a probate is nothing but an official proof of a will. The executor of the Will can apply for the Probate. In other words, a Probate adds to the legal validity of the Will. It is nothing but the Court certifying that the Will is genuine.

According to the Indian Succession Act, 1925, a Probate is ‘A copy of will certified under the seal of a court of competent jurisdiction with grant of administration of the estate of testator.’  

Many a times question arises whether one should get the Will probated. Well the answer for this question is – if you are staying in metro cities like Mumbai, Kolkata or Chennai – you will have to get the Will probated from the competent court.

If you are not staying in any of the above metros, whether to get the Will probated or not will differ from case to case as facts of every case will be different.

Now, consider a situation wherein there is no dispute between the legal heirs and Will is absolutely clear and not ambiguous, then there is no need to get the same probated.  However, considering the opposite situation wherein there is a dispute between the legal heirs or the Will is ambiguous then it is advisable to file a probate application seeking for a probate order.

A probate gives legal sanctity to the Will or its executor to transfer the properties in the names of individuals to whom the property is bequeathed.

A Probate is also required in case the will is made outside the territories of Mumbai, Chennai and Kolkata, but for assets situated inside these territories.

 

Application for Probate and documents required

A probate is issued to the executor of the Will by the Competent Court, with a copy of Will attached. The competent court can be the High Court or the District Court.

Consult a lawyer before making an application for probate. The said application should be made to the court under whose jurisdiction the property falls.

One can apply for a probate after seven days of the death of the testator.

 

Documents Required

Along with a probate application, following documents need to be submitted:

a.     Proof of the death of the testator.

      b. That the will is genuine and is the last will made by the testator.

      c. That the will is validly executed by the testator.  

 

Process for Grant of Probate

After the application for Probate is filed with the competent court, it will be verified by the authorities and notices are despatched to the other legal heirs and close relatives of the deceased, informing them of the issue of probate.

A general public notice is also published giving an opportunity to raise any objections to the grant of probate.

If no objections are received then the probate is issued, and is done after the court fees are paid. The court fees depend upon the value of the immovable assets.

No doubt getting a probate is a time consuming process and may also put financial pressure on you, it is essential, if there are immovable properties situated in various states and involves high value properties.

 

Do I need to get a registered Will probated?

It is the most common question asked by many. In the previous blog we have discussed how registration of the Will is not at all compulsory. However, it is always advisable to get the Will registered so as to provide a strong legal evidence about the validity of the Will and avoid further legal complications.

In India, registration of instruments/documents is done according to the provisions of The Registration Act, 1908. This Act lists out the instruments which require compulsory registration with competent authorities.

Although, registration of a will is not compulsory, doing so implies that the person writing the will and the witnesses have appeared before the registering authority who have verified their identity and attested the same.

In the Indian law there is no provision which states that a registered Will needs to be probated. However, probate is considered to be a conclusive evidence of genuineness of the Will.

For further queries --

Adv Rahul M Tawade

email: rahultri99@gmail.com

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