Probate is the legal process to certify the authenticity of a Will which can be granted only to the executor appointed in the Will.
Probate is understood as the legal process a Will undergoes to prove its validity before anything can be apportioned to the legatees or recipients. It is a process of certifying the authenticity of a Will which can be granted only to the executor so appointed in the Will. Probate is granted by the Court of competent jurisdiction.
A Will is a testament and a legal declaration by which a person, namely, the testator, names one or more persons as the executor to manage their estate and provide for the transfer of their property after their death.
A Will can be made by anyone above 21 years of age in India and is a very effective tool of guidance in estate planning.
Under the Indian Succession Act, 1925, any adult of a sound mind can write a Will to plan their estate’s administration after their death. Any person who has a physical inability, viz. loss of sight or hearing, cannot be prevented from making a Will, as long as the person is mentally fully aware of their action and is doing it voluntarily without coercion, undue influence, etc.
The criteria for preparing a Will to be followed is as under:
1. The testator should be of a sound and disposing mind.
2. He should be free from any undue influence or coercion.
3. The making of the Will should be a voluntary act.
4. The testator should be fully aware of the contents of the Will.
However, this Act excludes Muslims as their laws are mostly governed under Muslim Personal Law.
The following checklist in a Will helps ensure its enforceability:
1. The Will should have the details of the testator, e.g. name, address.
2. The need for making the Will should be spelt out along with the fact that the testator is of a sound mind and is making the Will voluntarily and there is no coercion.
3. Use of unambiguous language in bequeathing of the estate.
4. The name of the executor (the person named by the testator to execute the testator’s wishes) should be mentioned.
5. The schedule of properties should be appended and
6. The Will should be signed by the testator and attested by two witnesses.
Though a Will is not required to be registered and can be drawn on plain paper also, it is desirable that it be registered. The registration can be done with the Registrar of Assurances where the testator resides.
A Will can be registered during the life of the testator or by the executor or legatee after the death of the testator. Later amendments should also be registered. Registration of a Will ensures that it cannot be tampered with, the authenticity of the Will is established, and allegations of making the Will under duress can also be deflected.
Irrespective of whether a Will is registered or not, the executor has to initiate the probate process in a High Court or a District Court which has appropriate jurisdiction.
The required Fees paid for obtaining the Probate varies from one State to another. The Court Fees also depends on the value of the Assets.
The Executor/ beneficiaries or the legal heirs of the deceased Testator, as the case may be, should prefer the Petition for Probate within three (3) years from the death of the deceased Testator as has been prescribed in Article 137 of the Indian Limitation Act, 1963.
A petition needs to be filed in an appropriate court of jurisdiction. The Executor appointed in the Will is the Petitioner who files the Petition along with the original Will.
1. The Petition as mentioned above is filed before the competent Court under the territorial jurisdiction of which the residence of the deceased Testator falls.
2. The Pecuniary jurisdiction of the Courts depends on the monetary value of the immovable assets of the deceased Testator, based on which the Petition for Probate is preferred either in the District Court or in the High Court.
3. The petition should describe the date, time, and place of death of the testator, and annex the Original Will as an exhibit to the petition.
4. The petition should be duly verified at the time of filing.
5. A stamp paper of requisite court fee should be annexed along with the petition, for the court to grant the probate on that stamp paper.
6. The Executor/ Petitioner pays the required Court Fee depending on the value of the assets.
7. The Executor/ Petitioner specifically mentions the names and addresses of the deceased’s legal heirs in order to serve them the Notice of the Petition.
8. The Court askes the Petitioner to furnish the Testator’s proof of death along with the evidence qua validity and authenticity of the Will and asks for the confirmation that the Will concerned is the last Will of the deceased.
9. After the receipt of petition, the court calls for objections from the legal heirs or kin. A Notice is published to this effect in 2 leading newspapers, both English and regional with a specified period to report the objections.
10. The Court grants the Probate if no one raises any objection.
11. If there are objections, the Petition for Probate becomes Original Suit and the respective parties lead their evidences and argue the matter.
12. The Court passes the judgment based on the evidence lead and arguments advanced by the parties.
A Probate becomes mandatory under the Indian Succession Act, 1925, when a Will is made in the jurisdiction of the regime of the Lieutenant-Governor of Bengal or within the jurisdiction of the Ordinary Original Civil Jurisdiction of the High Courts of Judicature at Madras and Bombay.
The provisions of the said Act refer to the places like how they were renowned at the time of enactment of the Indian Succession Act, 1925, even if the Will does not deal with any immovable property.
Also, the system of mandatory probate is germane, in the case where the Will is made by a Hindu, Jain, Sikh or Buddhist. However, getting probate is advisable, if there could be a probability of the cogency of the Will being contested in future on any ground.
For the rest of India, if there is property within the territory of formerly unpartitioned Bengal, or in territories falling within the jurisdiction of High Courts of Madras or Bombay, probate is mandatory for transfer of the immovable property.
The beneficiaries named in the Will must obtain Probate of Will for the following reasons.
1. The Legal heir / beneficiary can easily and conveniently transfer the assets in his name, provided that the property was solely owned by the Testator.
2. It is necessary to file for Probate of Will if the Testator has immovable assets in different States.
3. Probate is granted only to the named Executor in the Will, who gets the authority to distribute the assets of the Testator and pay off the bills, dues, debts of the Testator.
Probate of Will in India is a vital mechanism for administration and distribution of the assets of the deceased testator as per his last Will, in an orderly manner. By the process of Probate, the Executor/ administrator can fulfill the last wishes of the deceased testator in order, along with securing and protecting the interest of the legal heirs and/ or beneficiaries named in the Will.
A registered Will need not be necessarily probated, as registration means that the testator of the Will and the witnesses have appeared before the sub-registrar of assurances and that their identity has been verified. However, the registered Will can also be probated, if the authenticity of the Will is in question.
Nevertheless, a Will that does not fall within the instruments that need to be mandatorily registered under the Registration Act 1908 and even an unregistered Will is also valid. The Will has to be probated, as mentioned above and for places like Delhi, if it is made there, it is mandatory to probate unregistered Wills to execute it.
A probate is used to protect estates so that the correct beneficiaries inherit the testator’s assets. It provides the chance to close out all creditors to the estate within 90 days. It is even used as a tool to challenge a creditor’s claim in a court of law in case the creditor has falsely made a claim.
Therefore, probate of a Will establishes the legitimacy of a will after the death of the testator and shows the executors and legal heirs to the substance mentioned in the will. However, if there is consent among all heirs then there is no need to go through the probate process.
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