In this article Meaning of Probate of a Will and the procedure for Probate are given in detail.
Meaning of Probate of a Will
According to Section 2 of the Indian Succession Act, 1925, Probate means "the copy of a Will certified under the seal of a court of competent jurisdiction with a grant of administration of the estate of the testator". It is nothing but a decree passed by a competent court declaring the legality/correctness and genuineness of the Will of the deceased.
Necessity to Probate a Will
Under Section 219 of the Indian Succession Act, 1925, if the deceased has died intestate and was not a person belonging to any of the classes referred to in Section 218 (i.e, Hindu, Mohammedan, Buddhist, Sikh or Jain or an exempted person), those who are connected with him either by marriage or by consanguinity are entitled to obtain Letters of Administration of his estate and effects in the order and according to the rules framed in this section. Under Section 212(2) of the Indian Succession Act, 1925, Hindus, Muslims, etc. are not bound to apply for letters of administration (Probate). It is optional and not mandatory for these persons to seek probate of the Will.
Advantages of a Probated Will
Probate of a Will when granted, establishes the genuineness of Will from the death of the testator and renders valid all intermediate acts of the Executor as such.
The legal consequences if the Will is not Probated
If the Will which is required to be probated, under the Act, if not probated, has no legal sanctity and binding force.
Time frame within which a Will is to be Probated
There is no limitation for grant of letters of administration or probate. Where the estate is in the possession of administrator there is no question of the Probate Court delivering the possession to him but the probate will be decisive only with regard to the genuineness of the Will propounded and the right of the executor to represent the estate.
Appropriate Court to file the suit for the Probate of a Will
Principal Court of Original Jurisdiction as per the local City Civil Court Act. The High Court also enjoys concurrent jurisdiction to grant probate of the Will.
Who can apply for the Probate of a Will?
According to Section 222 of the Indian Succession Act, 1926, Probate shall be granted only to an Executor appointed by the Will. The appointment may be expressed or by necessary implication. In the absence of the Executor being named in the Will, the Legatees or the Beneficiaries under the Will could also seek probate of the Will.
Probate will not be granted to minors, persons of unsound mind, to any association of individuals unless it is a company, which satisfies the rules, conditions prescribed and published in official gazette by the State government.
Documents to be submitted for obtaining the Probate
The court usually asks the petitioner to establish the proof of death of testator, proof that the will has been validly executed by the testator, and that it is the last will and testament of the deceased.
After receiving the petition for a probate, the court issues a notice to the next of kin of the deceased to file objections, if any, to the granting of the probate. It also directs the publication of a citation on board to notify the general public.
Fee payable for a Probate
The court may impose a percentage of assets as a fee to issue a probate. In Maharashtra, for example, 4% for assets between Rupees 50,000-2 lakh, and 7.5% for assets over Rupees 2 lakh. There is a ceiling of Rupees 75,000.
In addition to the court fee, the lawyer’s fee also needs to taken into account.
Procedure for obtaining a Probate
A petition has to be filed before the Principal Court of Original Jurisdiction or before the Hon'ble High Court under Section 374 of the Indian Succession Act. The Court in question will issue the court notices at the initial stage and a paper publication will be caused besides a Gazette publication as well. In case such a petition is contested, it will be converted into a regular suit and upon contest the same will be disposed of, by delivering the judgment and decree, in accordance with law.