Will has been defined under section 2(h) of the Indian Succession Act 1925. The definition given under the section defines Will as follows: “Legal declaration of the intention of a person with respect to his property, which he desires to take effect after his death”. In simple language, a Will is a legal instrument. Through a Will a person disposes off his property. He does this in the name of his relatives, friends or any other person.
Aman owns a house. He decides to give 75% of the share to his Daughter Nisha and 25% to his Son Nakul. Aman writes down a will stating the above. After the death of Aman, the executor will have to divide his property according to the will.
Generally, Will takes effect after the death of the testator/testatrix (person making the will). Although, in some cases transfer of the property happens in the lifetime of the testator as well. The validity of the will is proved by the signature of the testator and the attesting witnesses of the will but if there is a probate of will, then it increases the credibility of the will.
The Indian Succession Act, 1925 decrees that 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 and thereby adds a legal character to the will. 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’.
In simple words probate is alegal process of determing oif a will written is valid or invalid and to determine its authenticity.
The word ‘Probate’ means to prove or validate something. It is a procedure for court approval of the Will as the valid and last Will of the deceased testator. According to the Indian Succession Act, 1925, “Probate of will, when granted establishes the will from the death of the testator, and renders valid all intermediate acts of the executor as such.”
It means that when a Will is probated, it gets officially certified with a seal of the court and provides the authority to the executor to appropriately distribute the assets of deceased testator and also to pay off bills and creditors from that estate.
Probates are issued to the executors of the will, to authorize them with a seal of approval from the court. In case there are no executors of the will, only a simple letter of administration is issued by the court, and not a probate.
When a probate is applied for, and the will is proved, the original copy is retained by the court, which provides the executor with a certificate proving that it is genuine (the probate) and a copy of the will.
Now, it is established that a probate legalises a will or the executor of the will to transfer the properties in the names of individuals to whom the property is bequeathed.
However, there are reasons as to why a probate might become crucial. Let’s say a property, within a society, is bequeathed to an individual and he or she wants to occupy it. Since, as per the society register, the owner is the person who has died and left the Will, unless the
executor shows a probate stating their authority to transfer the said property, the society might not agree to the transfer.
A probate is issued for a will or any codicil attached, by persons of Indian Hindu, Parsis, Buddhists, Sikhs or Jains, primarily in the cities of Chennai, Kolkata and Mumbai.
In other words, will probate is a legal process which facilitates the deceased person to distribute his estate properly amongst his heirs and designated beneficiaries. It also provides for paying off the debt owed to the creditors.
Probate can be applied for after 7 days of the death of the testator. The entire process of Probate of Will takes at least six to nine months to complete. However, if there is any objection to the public regarding the Will, then the Probate of Will process can even take up to 2 years to get completed, depending upon the seriousness of the objection. It is not mandatory to probate a will as there are various circumstances which make the probate of will in a certain case unnecessary but rules can vary from state to state. When the assets are owned by people in joint names with their children, spouses or other person, then it passes automatically by the operation of law to the surviving owners and there is no requirement of probate of Will in distributing the property.
However one requires a probate when the existing Will has a problem. Or, the testator predeceases the beneficiaries named in the probate. Or, the Will has no beneficiary named in it or when the deceased testator solely owns an estate.
The probates are granted to the executor or executors (in succession, in case more than one is named), by the High Court, with a copy of the will attached. TheThe application for probate, need to make with the help of a lawyer or an advocate, to the High Court, under whose jurisdiction the property might fall. Although a lower court may empowered to supply a probate for immovable properties of a small value, a probate from a higher court thus required for high-value immovable assets.
While submitting a probate application, Certain documents are thus needed to submit which proves that:
a. The will genuine and the last will made by the testator.
b. The proof of death of the testator.
c. That the will validly executed in clear conscience of the testator.
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.
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.
-Chrome Leather Company Ltd vs Q.Dawson on 6 September 2012
-Bali Ram Dhote vs Bhupendra Nath Banerjee And Ors. on 1 June 1978
-Ram Shankar vs Balakdas on 29 August 1991
-P. Kamakshi Ammal vs P. Venkatesan And Ors. on 8 April, 1985