Will and Probate

Assets of a person pass on through two ways after his death. The first way under which this can happen, is through a Will. The second method, which is automatic, is when the person does not leave any valid Will. It can also happen with respect to the assets that have not been bequeathed through his Will. In such cases, his entire estate or the assets not bequeathed through a Will, pass on to his legal heirs as per the provisions of the succession law applicable to him, based on his religion.

A probate has been defined under the Indian Succession Act, 1925 as under:

‘Probate’ means the copy of a Will, certified under the seal of a court of competent jurisdiction, with a grant of administration to the estate of the testator’.

The person who makes a Will, expresses his wishes to be executed after his death by certain persons who are generally named in the Will. The persons so named to execute the Will, are called its executors. A probate is a method through which a Will is certified, under the seal of a court. A probate establishes and authenticates the Will finally. A probate is a conclusive proof of the fact that the Will was executed validly and is genuine and the last Will of the deceased.

There is gross unawareness among the public at large, about the circumstances under which a Will is mandatory. Under the Indian Succession Act, 1925, a probate is mandatory when a Will is made in a place which was under the rule of the Lieutenant-Governor of Bengal or within the local limits of the ordinary original civil jurisdiction of the High Courts of Judicature at Madras and Bombay. The provisions refer to the places as were known at the time of enactment of the Indian Succession Act, 1925. These can be understood to mean the state of West Bengal and municipal limits of metro cities of Chennai and Mumbai, respectively, in present days. The above rule of mandatory probate is applicable, in case the Will is made by a Hindu, Jain, Sikh or Buddhist. It may be interesting to note that a probate is mandatory if the Will is within the geographical limits of these places, even if the Will does not deal with any immovable property.

So, unless covered by any of these three cases, a probate of a Will is not mandatory. However there is no restriction in law to get a probate of a Will, even if it is not mandatory. Obtaining a probate is advisable, in cases where there is a probability of the validity of the Will being contested in future on any ground.

The application for a probate, can only be made by the executor/s named in the Will. The executor has to make an application for grant of a probate under the seal of the court, certifying the Will. In case there are more than one executors, the probate can be granted to them together or as and when the application for probate is made. In case no executor is appointed under the Will, only a simple letter of administration is issued by the court but not a probate.

Many housing societies do not insist on a probate, for the transfer of flats in the name of persons to whom the flats have been bequeathed, as the office bearers are not aware that a probate of a Will is mandatory in these places. However, for the properties situated in the above three territories, the housing societies or the authorities who are entrusted with registering the names of the owners, may insist on the production of a probate, for transfer of properties.

The executor has to make an application to the court, for issue of a probate. The executor has to attach the original Will with the application. In the application, the executor has to mention the names and addresses of the legal heirs of the deceased, so that notice can be issued to them, before the Will is probated.

The court generally requires the petitioners to establish the facts of death of the testator with proof, which is generally done with the help of a death certificate issued by the local authorities. The executors are also required to establish that the Will produced before the court is the last Will of the deceased. The petitioners are also required to establish that the submitted Will was validly executed by the testator.

After the application is submitted, it is verified and then, notices are issued to the legal heirs of the deceased about the fact of application for probate having been received by the court. A general notice is also published, giving an opportunity for raising any objections to the grant of the probate. In case no objections are received by the court, the probate is issued. In case the court receives objections to the issue of the probate, then, the application turns into a testamentary suit.

Since the probate is granted by a high court, you have to pay a court fee, based on the value of the assets, which are subject matter of the petition. The court fee varies from state to state. In the state of Maharashtra, it is 2% to 7.5%, depending on the slabs, subject to a maximum of Rs 75,000. In addition to the court fee, you also have to bear the lawyer’s fees. The cost would be paid out of the estate of the deceased.